EXHIBIT 4.1
EXECUTION COPY
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ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.
9 7/8% Senior Notes due 2011
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INDENTURE
Dated as of August 26, 2003
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THE BANK OF NEW YORK,
Trustee
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions....................................................................... 1
SECTION 1.02. Other Definitions................................................................. 26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act................................. 27
SECTION 1.04. Rules of Construction............................................................. 27
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.......................................... 28
SECTION 2.02. Form and Dating................................................................... 29
SECTION 2.03. Execution and Authentication...................................................... 29
SECTION 2.04. Registrar and Paying Agent........................................................ 30
SECTION 2.05. Paying Agent To Hold Money in Trust............................................... 31
SECTION 2.06. Holder Lists...................................................................... 31
SECTION 2.07. Transfer and Exchange............................................................. 31
SECTION 2.08. Replacement Securities............................................................ 32
SECTION 2.09. Outstanding Securities............................................................ 32
SECTION 2.10. Temporary Securities.............................................................. 33
SECTION 2.11. Cancelation....................................................................... 33
SECTION 2.12. Defaulted Interest................................................................ 33
SECTION 2.13. CUSIP and ISIN Numbers............................................................ 33
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee................................................................ 34
SECTION 3.02. Selection of Securities To Be Redeemed............................................ 34
SECTION 3.03. Notice of Redemption.............................................................. 34
SECTION 3.04. Effect of Notice of Redemption.................................................... 35
SECTION 3.05. Deposit of Redemption Price....................................................... 35
SECTION 3.06. Securities Redeemed in Part....................................................... 36
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities............................................................. 36
SECTION 4.02. SEC Reports....................................................................... 36
SECTION 4.03. Limitation on Indebtedness........................................................ 36
SECTION 4.04. Limitation on Restricted Payments................................................. 38
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries.......... 43
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock................................ 44
SECTION 4.07. Limitation on Transactions with Affiliates........................................ 48
SECTION 4.08. Change of Control................................................................. 49
SECTION 4.09. Compliance Certificate............................................................ 51
SECTION 4.10. Further Instruments and Acts...................................................... 51
SECTION 4.11. Future Guarantors................................................................. 51
SECTION 4.12. Limitation on Lines of Business................................................... 51
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries.... 51
SECTION 4.14. Limitation on Liens............................................................... 52
SECTION 4.15. Limitation on Sale/Leaseback Transactions......................................... 52
ARTICLE V
Successor Issuer
SECTION 5.01. When Issuer May Merge or Transfer Assets.......................................... 53
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default................................................................. 54
SECTION 6.02. Acceleration...................................................................... 56
SECTION 6.03. Other Remedies.................................................................... 56
SECTION 6.04. Waiver of Past Defaults........................................................... 56
SECTION 6.05. Control by Majority............................................................... 57
SECTION 6.06. Limitation on Suits............................................................... 57
SECTION 6.07. Rights of Holders to Receive Payment.............................................. 57
SECTION 6.08. Collection Suit by Trustee........................................................ 57
SECTION 6.09. Trustee May File Proofs of Claim.................................................. 58
SECTION 6.10. Priorities........................................................................ 58
SECTION 6.11. Undertaking for Costs............................................................. 58
SECTION 6.12. Waiver of Stay or Extension Laws.................................................. 58
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee................................................................. 59
SECTION 7.02. Rights of Trustee................................................................. 60
SECTION 7.03. Individual Rights of Trustee...................................................... 61
SECTION 7.04. Trustee's Disclaimer.............................................................. 61
SECTION 7.05. Notice of Defaults................................................................ 61
SECTION 7.06. Reports by Trustee to Holders..................................................... 61
SECTION 7.07. Compensation and Indemnity........................................................ 62
SECTION 7.08. Replacement of Trustee............................................................ 63
SECTION 7.09. Successor Trustee by Merger....................................................... 63
SECTION 7.10. Eligibility; Disqualification..................................................... 64
SECTION 7.11. Preferential Collection of Claims Against Issuer.................................. 64
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.................................. 64
SECTION 8.02. Conditions to Defeasance.......................................................... 65
SECTION 8.03. Application of Trust Money........................................................ 66
SECTION 8.04. Repayment to Issuer............................................................... 66
SECTION 8.05. Indemnity for Government Obligations.............................................. 66
SECTION 8.06. Reinstatement..................................................................... 67
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders........................................................ 67
SECTION 9.02. With Consent of Holders........................................................... 68
SECTION 9.03. Compliance with Trust Indenture Act............................................... 69
SECTION 9.04. Revocation and Effect of Consents and Waivers..................................... 69
SECTION 9.05. Notation on or Exchange of Securities............................................. 69
SECTION 9.06. Trustee To Sign Amendments........................................................ 69
ARTICLE X
Guarantees
SECTION 10.01. Guarantees........................................................................ 70
SECTION 10.02. Limitation on Liability........................................................... 72
SECTION 10.03. Successors and Assigns............................................................ 72
SECTION 10.04. No Waiver......................................................................... 72
SECTION 10.05. Modification...................................................................... 73
SECTION 10.06. Execution of Supplemental Indenture for Future Guarantors......................... 73
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls...................................................... 73
SECTION 11.02. Notices........................................................................... 73
SECTION 11.03. Communication by Holders with Other Holders....................................... 74
SECTION 11.04. Certificate and Opinion as to Conditions Precedent................................ 74
SECTION 11.05. Statements Required in Certificate or Opinion..................................... 75
SECTION 11.06. When Securities Disregarded....................................................... 75
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar...................................... 75
SECTION 11.08. Legal Holidays.................................................................... 75
SECTION 11.09. GOVERNING LAW..................................................................... 75
SECTION 11.10. No Recourse Against Others........................................................ 75
SECTION 11.11. Successors........................................................................ 76
SECTION 11.12. Multiple Originals................................................................ 76
SECTION 11.13. Table of Contents; Headings....................................................... 76
SECTION 11.14. Designation....................................................................... 76
Appendix - Provisions Relating to Initial Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of August 26, 2003, among
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., a
Delaware corporation (the "Issuer"), and each of
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC., a Delaware
corporation ("Parent"), ACS OF THE NORTHLAND, INC.,
ACS OF ALASKA, INC., ACS OF FAIRBANKS, INC., ACS OF
ANCHORAGE, INC., ACS WIRELESS, INC., ACS LONG
DISTANCE, INC., ACS TELEVISION, L.L.C., ACS INTERNET,
INC., ACS MESSAGING, INC., ACS INFOSOURCE, INC., ACS
OF ALASKA LICENSE SUB, INC., ACS OF THE NORTHLAND
LICENSE SUB, INC., ACS OF FAIRBANKS LICENSE SUB,
INC., ACS OF ANCHORAGE LICENSE SUB, INC., ACS
WIRELESS LICENSE SUB, INC., ACS LONG DISTANCE LICENSE
SUB, INC., ACS TELEVISION LICENSE SUB, INC. and ACS
SERVICES, INC. (collectively, the "Guarantors"), as
guarantors, and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (a) the Issuer's
9 7/8% Senior Notes due 2011 issued on the date hereof (the "Original
Securities"), (b) any Additional Securities (as defined herein) that may be
issued on any Issue Date (as defined herein) (all such Securities in clauses (a)
and (b), the "Initial Securities") and (c) if and when issued as provided in a
Registration Agreement (as defined in the appendix hereto (the "Appendix")), the
Issuer's 9 7/8% Senior Notes due 2011 issued in a Registered Exchange Offer (as
defined in the Appendix) in exchange for any Initial Securities (the "Exchange
Securities" and, together with the Initial Securities, the "Securities").
Subject to the conditions and in compliance with the covenants set forth herein,
the Issuer may issue an unlimited aggregate principal amount of Additional
Securities.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. DEFINITIONS.
"Additional Assets" means:
(1) any property or assets (other than Indebtedness and
Capital Stock) to be used by the Issuer or a Restricted Subsidiary in a
Related Business;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Issuer or another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary;
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PROVIDED, HOWEVER, that any such Restricted Subsidiary described in clauses (2)
or (3) above is primarily engaged in a Related Business.
"additional interest" means any additional interest payable
under a Registration Agreement.
"Additional Securities" means any 9 7/8% Senior Notes due 2011
issued under the terms of this Indenture subsequent to the Closing Date.
"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 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. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of Parent or the Issuer or of rights
or warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Issuer or any Restricted Subsidiary, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Issuer or a
Restricted Subsidiary);
(2) all or substantially all the assets of any division or
line of business of the Issuer or any Restricted Subsidiary; or
(3) any other assets of the Issuer or any Restricted
Subsidiary outside of the ordinary course of business of the Issuer or
such Restricted Subsidiary;
(other than, in the case of (1), (2) and (3) above:
(a) a disposition by a Restricted Subsidiary to the Issuer or
by the Issuer or a Restricted Subsidiary to a Wholly Owned Subsidiary;
(b) for purposes of Section 4.06 only, a disposition subject
to Section 4.04;
(c) a disposition of assets with a fair market value of less
than $100,000;
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(d) a disposition of Temporary Cash Investments or goods held
for sale in the ordinary course of business or obsolete equipment or
other obsolete assets in the course of business consistent with past
practices of the Issuer;
(e) the disposition of all or substantially all of the assets
of the Issuer in a manner permitted under Section 5.01 or any
disposition that constitutes a Change of Control under the Indenture;
and
(f) the lease, assignment or sublease of any real or personal
property in the ordinary course of business).
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing:
(1) the sum of the products of the numbers of years from the
date of determination to the dates of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment
with respect to such Preferred Stock multiplied by the amount of such
payment by
(2) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreement, the notes issued pursuant thereto, the
guarantees thereof, the collateral documents relating thereto and any
Refinancing Indebtedness with respect thereto, as amended from time to time,
including principal, premium (if any), interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Issuer whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the
Issuer or any committee thereof duly authorized to act on behalf of the Board of
Directors of the Issuer.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in
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accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof 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 prepaid by the lessee without payment of a
penalty.
"Change of Control" means the occurrence of any of the
following events:
(1) (a) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this
clause (a) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of Parent or the Issuer and (b) the Permitted
Holders beneficially own (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, in the aggregate a lesser
percentage of the total voting power of the Voting Stock of Parent or
the Issuer than such other person and do not have the right or ability
by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Parent or the Issuer,
as the case may be (for the purposes of this clause (1), such other
person shall be deemed to beneficially own any Voting Stock of a
specified entity held by a parent entity, if such other person is the
beneficial owner (as defined in clause (a) above), directly or
indirectly, of more than 35% of the voting power of the Voting Stock of
such parent entity and the Permitted Holders beneficially own (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a lesser percentage of the voting power of
the Voting Stock of such parent entity and do not have the right or
ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such parent
entity);
(2) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Issuer or Parent, as the case may be (together with any new
directors (a) whose election by such Board of Directors of Parent or
the Issuer, as the case may be, or whose nomination for election by the
shareholders of Parent or the Issuer, as the case may be, was approved
by a majority vote of the directors of Parent or the Issuer, as the
case may be, then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved or (b) who are designees of the Permitted
Holders or were nominated by the Permitted Holders) cease for any
reason to constitute a majority of the Board of Directors of the Issuer
or Parent, as the case may be, then in office;
(3) the adoption of a plan relating to the liquidation or
dissolution of Parent or the Issuer;
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(4) the merger or consolidation of Parent or the Issuer with
or into another Person or the merger of another Person with or into
Parent or the Issuer, or the sale of all or substantially all the
assets of Parent or the Issuer to another Person (other than a Person
that is controlled by the Permitted Holders), and, in the case of any
such merger or consolidation, the securities of Parent or the Issuer
that are outstanding immediately prior to such transaction and that
represent 100% of the aggregate voting power of the Voting Stock of
Parent or the Issuer are changed into or exchanged for cash, securities
or property, unless pursuant to such transaction such securities are
changed into or exchanged for, in addition to any other consideration,
securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving Person or
transferee; or
(5) the Issuer ceases to be a Wholly Owned Subsidiary of
Parent.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Current Liabilities" as of the date of
determination means the aggregate amount of liabilities of the Issuer and its
Consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), on a Consolidated basis,
after eliminating:
(1) all intercompany items between the Issuer and any
Restricted Subsidiary; and
(2) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Issuer and its Consolidated Restricted
Subsidiaries, plus, to the extent Incurred by the Issuer and its Consolidated
Restricted Subsidiaries in such period but not included in such interest
expense:
(1) interest expense attributable to Capitalized Lease
Obligations and the interest expense attributable to leases
constituting part of a Sale/Leaseback Transaction;
(2) amortization of debt discount and debt issuance costs;
(3) capitalized interest;
(4) noncash interest expense;
(5) commissions, discounts and other fees and charges
attributable to letters of credit and bankers' acceptance financing;
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(6) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is guaranteed by the Issuer or any
Restricted Subsidiary;
(7) amortization of net costs associated with Hedging
Obligations (including amortization of fees);
(8) dividends in respect of all Disqualified Stock of the
Issuer and all Preferred Stock of any of the Subsidiaries of the
Issuer, to the extent held by Persons other than the Issuer or a Wholly
Owned Subsidiary;
(9) interest Incurred in connection with investments in
discontinued operations; and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Issuer) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income of the Issuer and its Consolidated Subsidiaries for such period;
PROVIDED, HOWEVER, that there shall not be included in such Consolidated Net
Income:
(1) any net income of any Person (other than the Issuer) if
such Person is not a Restricted Subsidiary, except that:
(a) subject to the limitations contained in clause
(4) below, the Issuer's equity in the net income of any such
Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash or other assets
actually distributed by such Person during such period to the
Issuer or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution made to a Restricted Subsidiary, to the
limitations contained in clause (3) below); and
(b) the Issuer's equity in a net loss of any such
Person for such period shall be included in determining such
Consolidated Net Income;
(2) any net income (or loss) of any Person acquired by the
Issuer or a Subsidiary of the Issuer in a pooling of interests
transaction for any period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions
by such Restricted Subsidiary of its net income is not, at the date of
determination, permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter, or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders, unless such
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restrictions with respect to the payment of dividends or similar
distributions have been legally waived, except that the net loss of any
such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain (but not loss) realized upon the sale or other
disposition of any asset of the Issuer or its Consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) that is not sold
or otherwise disposed of in the ordinary course of business and any
gain (but not loss) realized upon the sale or other disposition of any
Capital Stock of any Person;
(5) any extraordinary or otherwise nonrecurring gain or loss;
and
(6) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Issuer or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under clause
(a)(3)(E) of Section 4.04.
"Consolidated Net Tangible Assets" as of any date of
determination, means the total amount of assets (less accumulated depreciation
and amortization, allowances for doubtful receivables, other applicable reserves
and other properly deductible items) which would appear on a consolidated
balance sheet of the Issuer and its Consolidated Restricted Subsidiaries,
determined on a Consolidated basis in accordance with GAAP, and after giving
effect to purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of:
(1) minority interests in Consolidated Subsidiaries held by
Persons other than the Issuer or a Restricted Subsidiary;
(2) excess of cost over fair value of assets of businesses
acquired, as determined in good faith by the Board of Directors;
(3) any revaluation or other write-up in book value of assets
subsequent to the Closing Date as a result of a change in the method of
valuation in accordance with GAAP consistently applied;
(4) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(5) treasury stock;
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(6) cash set apart and held in a sinking or other analogous
fund established for the purpose of redemption or other retirement of
Capital Stock to the extent such obligation is not reflected in
Consolidated Current Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Issuer in accordance with
GAAP consistently applied; PROVIDED, HOWEVER, that "Consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Issuer or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 8 West,
New York, New York 10286, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Issuer, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Issuer).
"Credit Agreement" means the credit agreement to be entered
into among the Issuer, Parent, the financial institutions named therein and
JPMorgan Chase Bank, as Administrative Agent, as amended, waived or otherwise
modified from time to time (except to the extent that any such amendment, waiver
or other modification thereto would be prohibited by the terms of this
Indenture, unless otherwise agreed to by the Holders of at least a majority in
aggregate principal amount of Securities at the time outstanding), including any
such amendments or modifications (or any other credit agreement or credit
agreements) that replace, refund or refinance any or a portion of the
commitments or loans thereunder, up to a maximum principal amount not to exceed
$325,000,000.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreements or other similar agreement
or arrangement to which such Person is a party or of which it is a beneficiary.
"Debt to EBITDA Ratio" as of any date of determination means
the ratio of:
(1) Total Consolidated Indebtedness as of the date of
determination to
(2) EBITDA for the period of the most recent four consecutive
fiscal quarters ending at the end of the most recent fiscal quarter for
which financial statements are publicly available; PROVIDED, HOWEVER,
that:
(a) if the Issuer or any Restricted Subsidiary has
repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid,
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repurchased, defeased or otherwise discharged (in each case,
other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction
giving rise to the need to calculate the Debt to EBITDA Ratio,
EBITDA for such period shall be calculated on a pro forma
basis as if such discharge had occurred on the first day of
such period and as if the Issuer or such Restricted Subsidiary
has not earned the interest income actually earned during such
period in respect of cash or Temporary Cash Investments used
to repay, repurchase, defease or otherwise discharge such
Indebtedness;
(b) if since the beginning of such period the Issuer
or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable
to the assets that are the subject of such Asset Disposition
for such period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for such period;
(c) if since the beginning of such period, the Issuer
or any Restricted Subsidiary (by merger or otherwise) shall
have made an Investment in any Person that is merged with or
into the Issuer or any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of
assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an
operating unit of a business, EBITDA for such period shall be
calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; any such
pro forma calculation may include adjustments appropriate to
reflect, without duplication, (x) any such acquisition to the
extent such adjustments may be reflected in the preparation of
pro forma financial information in accordance with the
requirements of GAAP and Article XI of Regulation S-X under
the Exchange Act, (y) the annualized amount of operating
expense reductions reasonably expected to be realized in the
six months following any such acquisition made during any of
the four fiscal quarters constituting the four-quarter
reference period prior to the date of determination and (z)
the annualized amount of operating expense reductions
reasonably expected to be realized in the six months following
any such acquisition made by the Issuer during either of the
two fiscal quarters immediately preceding the four-quarter
reference period prior to the date of determination; PROVIDED
that in either case such adjustments are set forth in an
Officers' Certificate that has been signed by the Issuer's
chief executive officer and chief financial officer and that
states (i) the amount of such adjustment or adjustments, (ii)
that such adjustment or adjustments are based on the
reasonable good faith beliefs of the officers executing such
Officers' Certificate at the time of such execution and
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(iii) that any related Incurrence of Indebtedness is permitted
pursuant to the Indenture; and
(d) if since the beginning of such period, any Person
(that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset
Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (b) or
(c) above if made by the Issuer or a Restricted Subsidiary
during such period, EBITDA for such period shall be calculated
after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on
the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets and the amount of income or earnings relating thereto, the
pro forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Issuer. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or
Disqualified Stock; or
(3) is redeemable at the option of the holder thereof, in
whole or in part;
in each case on or prior to the first anniversary of the Stated Maturity of the
Securities; PROVIDED, HOWEVER, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the provisions of Sections 4.06 and 4.08.
11
"Domestic Subsidiary" means any Restricted Subsidiary of the
Issuer other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) income tax expense of the Issuer and its Consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation expense of the Issuer and its Consolidated
Restricted Subsidiaries;
(4) amortization expense of the Issuer and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to
a prepaid cash item that was paid in a prior period); and
(5) all other noncash charges of the Issuer and its
Consolidated Restricted Subsidiaries (excluding any such noncash charge
to the extent it represents an accrual of or reserve for cash
expenditures in any future period but that will not be expensed in such
future periods),
in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Issuer shall be added to Consolidated Net Income to
compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Issuer by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"Equity Offering" means any public or private sale of Capital
Stock (other than Disqualified Stock) of the Issuer or Parent, other than
offerings of the Issuer or Parent of the type that can be registered on Form
S-8.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Issuer that is not organized under the laws of the United States of America or
any state thereof or the District of Columbia.
12
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date, including those
set forth in:
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entities as approved
by a significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements
in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of any Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements, or
by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise); or
(2) entered into for purposes of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part);
PROVIDED, HOWEVER, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a correlative meaning. The term "guarantor" shall mean any
Person guaranteeing any obligation.
"Guarantee" means each guarantee of the obligations with
respect to the Notes issued by a Guarantor pursuant to the terms of the
Indenture.
"Guarantor" means each of Parent, ACS of the Northland, Inc.,
ACS of Alaska, Inc., ACS of Fairbanks, Inc., ACS of Anchorage, Inc., ACS
Wireless, Inc., ACS Long Distance, Inc., ACS Television, L.L.C., ACS Internet,
Inc., ACS Messaging, Inc., ACS InfoSource, Inc., ACS of Alaska License Sub,
Inc., ACS of the Northland License Sub, Inc., ACS of Fairbanks License Sub,
Inc., ACS of Anchorage License Sub, Inc.,
13
ACS Wireless License Sub, Inc., ACS Long Distance License Sub, Inc., ACS
Television License Sub, Inc. and ACS Services, Inc.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means issue, assume, guarantee, incur or otherwise
become liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of
a Person existing at the time such Person is merged or consolidated with the
Issuer or becomes a Subsidiary of the Issuer (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time of such merger or consolidation or at the time it becomes a Subsidiary of
the Issuer. The term "Incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-interest bearing or other discount
security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(3) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
(4) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except trade payables
and contingent obligations to pay earn-outs), which purchase price is
due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such
services;
(5) all Capitalized Lease Obligations and all Attributable
Debt of such Person;
(6) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(7) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; PROVIDED, HOWEVER, that the amount of Indebtedness of such
Person shall be the lesser of:
14
(a) the fair market value of such asset at such date of
determination and
(b) the amount of such Indebtedness of such other Persons;
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person; and
(9) all obligations of the type referred to in clauses (1)
through (8) above of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is a party or a
beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04:
(1) "Investment" shall include the portion (proportionate to
the Issuer's equity interest in such Subsidiary) of the fair market
value of the net assets of any Subsidiary of the Issuer at the time
that such Subsidiary is designated an Unrestricted Subsidiary;
PROVIDED, HOWEVER, that, upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Issuer shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to:
(a) the Issuer's Investment in such Subsidiary at the
time of such redesignation, less
15
(b) the portion (proportionate to the Issuer's equity
interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time of such
redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case, as determined in good faith by the Board of
Directors.
"Issue Date," with respect to any Initial Security, means the
date on which such Initial Security is originally issued.
"Issuer" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Legal Holiday" means a Saturday, Sunday or other day on which
banking institutions in the State of New York are authorized or required by law
to close.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Management Group" means the group consisting of current and
former directors and executive officers of the Issuer.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other noncash form)
therefrom, in each case net of:
(1) all legal fees and expenses, title and recording tax
expenses, commissions and other fees and expenses incurred, and all
federal, state, provincial, foreign and local taxes required to be paid
or accrued as a liability under GAAP, as a consequence of such Asset
Disposition;
(2) all payments, including any prepayment premiums or
penalties, made on any Indebtedness that is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any
Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, 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;
16
(3) all distributions and other payments required to be made
to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition; and
(4) appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed of in such Asset Disposition
and retained by the Issuer or any Restricted Subsidiary after such
Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees and expenses
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Issuer.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Trustee.
"Parent" means Alaska Communications Systems Group, Inc., a
Delaware corporation, but none of its subsidiaries.
"Permitted Holders" means Fox Xxxxx Capital Fund, L.P., and
its Affiliates, FPC Investors, L.P., ALEC Coinvestment Fund I, LLC, ALEC
Coinvestment Fund II, LLC, ALEC Coinvestment Fund III, LLC, ALEC Coinvestment
Fund IV, LLC, ALEC Coinvestment Fund V, LLC, ALEC Coinvestment Fund VI, LLC, the
Management Group and any Person acting in the capacity of an underwriter in
connection with a public or private offering of Parent's or the Issuer's Capital
Stock.
"Permitted Investment" means an Investment by the Issuer or
any Restricted Subsidiary in:
(1) the Issuer, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
PROVIDED, HOWEVER, that the primary business of such Restricted
Subsidiary is a Related Business;
(2) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Issuer or a
Restricted Subsidiary; PROVIDED, HOWEVER, that such Person's primary
business is a Related Business;
(3) Temporary Cash Investments;
17
(4) receivables owing to the Issuer or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
PROVIDED, HOWEVER, that such trade terms may include such concessionary
trade terms as the Issuer or any such Restricted Subsidiary deems
reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(6) any loans or advances to employees made in the ordinary
course of business consistent with past practices of the Issuer or such
Restricted Subsidiary and not exceeding, when aggregated with amounts
loaned or advanced under clause (b)(vi)(4) of Section 4.04, $5,000,000
in the aggregate outstanding at any one time;
(7) stock, obligations or securities received in settlement of
(or foreclosure with respect to) debts created in the ordinary course
of business and owing to the Issuer or any Restricted Subsidiary or in
satisfaction of judgments;
(8) any Person to the extent such Investment represents the
noncash or deemed cash portion of the consideration received for an
Asset Disposition that was made pursuant to and in compliance with
Section 4.06;
(9) any Investment existing on the Closing Date;
(10) Hedging Obligations permitted under paragraph (b)(vii) of
Section 4.03;
(11) guarantees of Indebtedness permitted under Section 4.03;
(12) Investments which are made exclusively with Capital Stock
of Parent or the Issuer (other than Disqualified Stock); and
(13) additional Investments having an aggregate fair market
value, taken together with all other Investments made pursuant to this
clause (13) that are at the time outstanding, not to exceed $5,000,000
at the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value).
"Permitted Joint Venture Interests" means equity interests
representing at least 35% of the Voting Stock of a Person engaged in a business
in which the Issuer was engaged at the Closing Date or a Related Business.
"Permitted Liens" means, with respect to any Person:
(1) pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits
18
in connection with bids, tenders, contracts (other than for the payment
of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such Person or deposits of
cash or United States government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other
proceedings for review;
(3) Liens for property taxes not yet due or payable or subject
to penalties for non-payment or which are being contested in good faith
by appropriate proceedings;
(4) Liens in favor of issuers of surety bonds or letters of
credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; PROVIDED, HOWEVER, that
such letters of credit do not constitute Indebtedness;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
property or Liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially
impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or
additions to, property or assets of such Person; PROVIDED, HOWEVER,
that the Lien may not extend to any other property or assets owned by
such Person or any of its Subsidiaries at the time the Lien is
Incurred, and the Indebtedness (other than any interest thereon)
secured by the Lien may not be Incurred more than 180 days after the
later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property
or assets subject to the Lien;
(7) Liens to secure Indebtedness permitted pursuant to clause
(b)(i) of Section 4.03;
(8) Liens existing on the Closing Date;
(9) Liens on property, assets or shares of stock of another
Person at the time such other Person becomes a Subsidiary of such
Person; PROVIDED, HOWEVER, that such Liens are not created, Incurred or
assumed in connection with, or in
19
contemplation of, such other Person becoming such a Subsidiary;
PROVIDED FURTHER, HOWEVER, that such Liens do not extend to any other
property or assets owned by such Person or any of its Subsidiaries;
(10) Liens on property or assets at the time such Person or
any of its Subsidiaries acquires the property or assets, including any
acquisition by means of a merger or consolidation with or into such
Person or any Subsidiary of such Person; PROVIDED, HOWEVER, that such
Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such acquisition; PROVIDED FURTHER, HOWEVER, that the
Liens do not extend to any other property or assets owned by such
Person or any of its Subsidiaries;
(11) Liens securing Indebtedness or other obligations of a
Subsidiary of such Person owing to such Person or a Wholly Owned
Subsidiary of such Person;
(12) Liens securing Indebtedness so long as the amount of
outstanding Indebtedness secured by Liens Incurred pursuant to this
clause (12) does not exceed 5% of Consolidated Net Tangible Assets, as
determined based on the consolidated balance sheet of the Issuer as of
the end of the most recent fiscal quarter ending at least 45 days prior
thereto;
(13) Liens securing obligations under Interest Rate Agreements
so long as such obligations relate to Indebtedness that is, and is
permitted under the Indenture to be, secured by a Lien on the same
property or assets securing such obligations; and
(14) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by
any Lien referred to in the foregoing clauses (6), (8), (9) and (10);
PROVIDED, HOWEVER, that:
(a) such new Lien shall be limited to all or part of
the same property that secured the original Lien (plus
improvements to or on such property); and
(b) the Indebtedness secured by such Lien at such
time is not increased to any amount greater than the sum of:
(i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured
by Liens described under clauses (6), (8), (9) or
(10) at the time the original Lien became a Permitted
Lien under the Indenture; and
(ii) an amount necessary to pay any fees and
expenses, including premiums, related to such
Refinancings.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated
20
organization, government or any agency or political subdivision thereof or any
other entity.
"Preferred Stock," as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security that is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness:
(1) consisting of the deferred purchase price of an asset,
conditional sale obligations, obligations under any title retention
agreement and other purchase money obligations, in each case where the
maturity of such Indebtedness does not exceed the anticipated useful
life of the asset being financed; and
(2) incurred to finance the acquisition by the Issuer or a
Restricted Subsidiary of such asset, including additions and
improvements; PROVIDED, HOWEVER, that such Indebtedness is incurred
within 180 days before or after the acquisition by the Issuer or such
Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, replace, prepay, redeem, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such
Indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, repay, redeem, retire, renew, repay or extend
(including pursuant to any defeasance or discharge mechanism) any Indebtedness
of the Issuer or any Restricted Subsidiary existing on the Closing Date or
Incurred in compliance with this Indenture (including Indebtedness of the Issuer
that Refinances Refinancing Indebtedness); PROVIDED, HOWEVER, that:
(1) the Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2) the Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate
principal amount (or if issued with original
21
issue discount, the aggregate accreted value) then outstanding of the
Indebtedness being Refinanced; and
(4) if the Indebtedness being Refinanced is subordinated in
right of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the same
extent as the Indebtedness being Refinanced;
PROVIDED FURTHER, HOWEVER, that Refinancing Indebtedness shall not include:
(1) Indebtedness of a Restricted Subsidiary that Refinances
Indebtedness of the Issuer; or
(2) Indebtedness of the Issuer or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Issuer and the Restricted Subsidiaries on
the Closing Date.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Issuer
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Issuer or a Restricted
Subsidiary whereby the Issuer or a Restricted Subsidiary transfers such property
to a Person and the Issuer or such Restricted Subsidiary leases it from such
Person, other than leases between the Issuer and a Wholly Owned Subsidiary or
between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer or
any Guarantor secured by a Lien.
"Senior Debt to EBITDA Ratio" as of any date of determination means the ratio
of:
(1) Total Consolidated Senior Indebtedness as of the date of
determination to
22
(2) EBITDA for the period of the most recent four consecutive
fiscal quarters ending at the end of the most recent fiscal quarter for
which financial statements are publicly available; PROVIDED, HOWEVER,
that:
(a) if the Issuer or any Restricted Subsidiary has
repaid, repurchased, defeased or otherwise discharged any
Senior Indebtedness since the beginning of such period or if
any Senior Indebtedness is to be repaid, repurchased, defeased
or otherwise discharged (in each case, other than Senior
Indebtedness Incurred under any revolving credit facility
unless such Senior Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction
giving rise to the need to calculate the Senior Debt to EBITDA
Ratio, EBITDA for such period shall be calculated on a pro
forma basis as if such discharge had occurred on the first day
of such period and as if the Issuer or such Restricted
Subsidiary has not earned the interest income actually earned
during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise
discharge such Senior Indebtedness;
(b) if since the beginning of such period the Issuer
or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable
to the assets that are the subject of such Asset Disposition
for such period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for such period;
(c) if since the beginning of such period, the Issuer
or any Restricted Subsidiary (by merger or otherwise) shall
have made an Investment in any Person that is merged with or
into the Issuer or any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of
assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an
operating unit of a business, EBITDA for such period shall be
calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; any such
pro forma calculation may include adjustments appropriate to
reflect, without duplication, (x) any such acquisition to the
extent such adjustments may be reflected in the preparation of
pro forma financial information in accordance with the
requirements of GAAP and Article XI of Regulation S-X under
the Exchange Act, (y) the annualized amount of operating
expense reductions reasonably expected to be realized in the
six months following any such acquisition made during any of
the four fiscal quarters constituting the four-quarter
reference period prior to the date of determination and (z)
the annualized amount of operating expense reductions
reasonably expected to be realized in the six months following
any such acquisition made by the Issuer during either of the
two fiscal quarters immediately preceding the four-quarter
reference period prior to
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the date of determination; provided that such adjustments are
set forth in an Officers' Certificate that has been signed by
the Issuer's chief executive officer and chief financial
officer and that states (i) the amount of such adjustment or
adjustments, (ii) that such adjustment or adjustments are
based on the reasonable good faith beliefs of the officers
executing such Officers' Certificate at the time of such
execution and (iii) that any related Incurrence of
Indebtedness is permitted pursuant to the Indenture; and
(d) if since the beginning of such period, any Person
(that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset
Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (b) or
(c) above if made by the Issuer or a Restricted Subsidiary
during such period, EBITDA for such period shall be calculated
after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on
the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets and the amount of income or earnings relating thereto, the
pro forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Issuer. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Senior Indebtedness" means all unsubordinated Indebtedness of
the Issuer or of any Restricted Subsidiary, whether outstanding on the Closing
Date or Incurred thereafter, including, without limitation, all Bank
Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Issuer within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security 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).
"Subordinated Obligation" means any Indebtedness of the Issuer
or any Guarantor (whether outstanding on the Closing Date or thereafter
Incurred) that is
24
subordinate or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity:
(1) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned,
controlled or held; or
(2) that is, as of such date, otherwise controlled by the
parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent.
"Telecommunications Assets" means (1) assets used or useful in
the operating businesses of the Issuer at the Closing Date or in a Related
Business or (2) equity interests representing a majority of the Voting Stock of
Persons engaged in such businesses.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States
of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(2) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date
of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States of
America having capital, surplus and undivided profits aggregating in
excess of $250,000,000 (or the foreign currency equivalent thereof) and
whose long-term debt is rated "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);
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
(4) investments in commercial paper, maturing not more than 90
days after the date of acquisition, issued by a corporation (other than
an Affiliate of the Issuer) organized and in existence under the laws
of the United States of America or any foreign country recognized by
the United States of America with a rating at
25
the time as of which any investment therein is made of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or
higher) according to Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc. ("S&P"); and
(5) investments in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at
least "A" by S&P or "A" by Xxxxx'x Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the Closing Date.
"Total Consolidated Indebtedness" means, as of any date of
determination, an amount equal to the aggregate amount of all Indebtedness of
the Issuer and its Restricted Subsidiaries, determined on a Consolidated basis,
outstanding as of such date of determination, after giving effect to any
Incurrence of Indebtedness and the application of the proceeds therefrom giving
rise to such determination.
"Total Consolidated Senior Indebtedness" means, as of any date
of determination, an amount equal to the aggregate amount of all Senior
Indebtedness of the Issuer and its Restricted Subsidiaries, determined on a
Consolidated basis, outstanding as of such date of determination, after giving
effect to any Incurrence of Senior Indebtedness and the application of the
proceeds therefrom giving rise to such determination.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Unrestricted Subsidiary" means:
(1) ACS Media Holdings LLC;
(2) any other Subsidiary of the Issuer that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(3) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Issuer (including any
newly acquired or newly formed Subsidiary of the Issuer) to be an Unrestricted
Subsidiary pursuant to clause (2) above unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Issuer or any other Subsidiary of the Issuer that
is not a Subsidiary of the Subsidiary to be so designated; PROVIDED, HOWEVER,
that either:
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(a) the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less; or
(b) if such Subsidiary has Consolidated assets greater than
$1,000, then such designation would be permitted under Section 4.04.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; PROVIDED, HOWEVER, that immediately after giving effect
to such designation:
(i) the Issuer could Incur $1.00 of additional Indebtedness
under paragraph (a) of Section 4.03 and
(ii) no Default shall have occurred and be continuing.
Any such designation of a Subsidiary as a Restricted Subsidiary, and any such
designation of a Subsidiary as an Unrestricted Subsidiary pursuant to clause (2)
above, by the Board of Directors shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"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 that are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Issuer all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Affiliate Transaction".................................................... 4.07(a)
"Appendix"................................................................. Preamble
"Bankruptcy Law"........................................................... 6.01
"Change of Control Offer".................................................. 4.08(b)
"covenant defeasance option"............................................... 8.01(b)
"Custodian"................................................................ 6.01
"Event of Default"......................................................... 6.01
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"Exchange Securities"...................................................... Preamble
"Global Securities"........................................................ Appendix
"Guaranteed Obligations"................................................... 10.01
"Initial Securities"....................................................... Preamble
"legal defeasance option".................................................. 8.01(b)
"Offer".................................................................... 4.06(b)
"Offer Amount"............................................................. 4.06(c)(ii)
"Offer Period"............................................................. 4.06(c)(ii)
"Original Securities"...................................................... Preamble
"Paying Agent"............................................................. 2.04(a)
"Purchase Date"............................................................ 4.06(c)(i)
"protected purchaser"...................................................... 2.04(a)
"Registrar"................................................................ 2.04(a)
"Restricted Payment"....................................................... 4.04(a)
"Securities" .............................................................. Preamble
"Successor Issuer"......................................................... 5.01(a)
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuer, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) "including" means including without limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue
of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing
or other discount security at any date shall be the principal
amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall
be (i) the maximum liquidation value of such Preferred Stock
or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock,
whichever is greater.
ARTICLE II
THE SECURITIES
SECTION 2.01. AMOUNT OF SECURITIES; ISSUABLE IN SERIES. The
aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture shall not be limited. The Securities may be issued in one
or more series. All Securities of any one series shall be substantially
identical except as to denomination, legends and Issue Date.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a resolution of the Board of Directors and
(b) (i) set forth or determined in the manner provided in an Officers'
Certificate or (ii) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(a) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the series from
Securities of any other series);
(b) the aggregate principal amount of such Additional
Securities that may be authenticated and delivered under this Indenture, which
may be in an unlimited amount;
(c) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional Securities
shall accrue;
29
PROVIDED, HOWEVER, that no Additional Securities may be issued unless such
Additional Securities are fungible with the Original Securities for U.S. federal
income tax purposes;
(d) if applicable, that such Additional Securities shall be
issued in a private placement transaction with registration rights;
(e) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective depositaries for such Global Securities, the form
of any legend or legends that shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in Section 2.3 of the
Appendix in which any such Global Security may be exchanged in whole or in part
for Additional Securities registered, or any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the depositary for such Global Security or a nominee thereof; and
(f) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A but shall
be issued in the form of Exchange Securities as set forth in Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of Directors,
a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the indenture
supplemental hereto setting forth the terms of the Additional Securities.
SECTION 2.02. FORM AND DATING. Provisions relating to the
Initial Securities and the Exchange Securities are set forth in the Appendix,
which is hereby incorporated in and expressly made a part of this Indenture. The
(i) Original Securities and the Trustee's certificate of authentication and (ii)
any Additional Securities (if issued as Transfer Restricted Securities) and the
Trustee's certificate of authentication shall each be substantially in the form
of Exhibit A hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Exchange Securities and any Additional Securities issued
other than as Transfer Restricted Securities and the Trustee's certificate of
authentication shall each be substantially in the form of Exhibit B hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Issuer or any Guarantor is subject, if
any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Issuer). Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in registered form without
interest coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.03. EXECUTION AND AUTHENTICATION. One or more
Officers shall sign the Securities for the Issuer by manual or facsimile
signature.
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If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Responsible Officer, a copy of
which shall be furnished to the Issuer. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. REGISTRAR AND PAYING AGENT. (a) The Issuer shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuer may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars. The Issuer initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian (as defined in the Appendix) with respect to the
Global Securities (as defined in the Appendix).
(b) The Issuer shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuer shall notify
the Trustee of the name and address of any such agent. If the Issuer fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Issuer or any of its domestically organized Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
(c) The Issuer may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; PROVIDED,
HOWEVER, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuer and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Issuer and the Trustee;
31
PROVIDED, HOWEVER, that the Trustee may resign as Paying Agent or Registrar only
if the Trustee also resigns as Trustee in accordance with Section 7.08.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to
each due date of the principal, interest and additional interest (if any) on any
Security, the Issuer shall deposit with the Paying Agent (or if the Issuer or a
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal,
interest and additional interest (if any) when so becoming due. The Issuer shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal of or interest and
additional interest (if any) on the Securities and shall notify the Trustee of
any default by the Issuer in making any such payment. If the Issuer or a
Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Issuer at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with this
Section 2.04, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. HOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five 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 Holders.
SECTION 2.07. TRANSFER AND EXCHANGE. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Issuer may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.06. The Issuer shall not be
required to make and the Registrar need not register transfers or exchanges of
Securities selected for redemption (except, in the case of Securities to be
redeemed in part, the portion thereof not to be redeemed) or any Securities for
a period of 15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Issuer, the Guarantors, the Trustee, the Paying Agent and the
Registrar may deem and treat the Person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and (subject to paragraph 2
32
of the Securities) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuer, any
Guarantor, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (i) the
Holder of such Global Security (or its agent) or (ii) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. REPLACEMENT SECURITIES. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuer shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Issuer or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (ii) makes such
request to the Issuer or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (iii) satisfies any other reasonable requirements
of the Trustee. If required by the Trustee or the Issuer, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Issuer, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Security is replaced. The Issuer and the Trustee may
charge the Holder for their expenses in replacing a Security. In the event any
such mutilated, lost, destroyed or wrongfully taken Security has become or is
about to become due and payable, the Issuer in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Issuer.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. OUTSTANDING SECURITIES. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section 2.08 as not outstanding. Subject to Section 13.06, a Security does
not cease to be outstanding because the Issuer or an Affiliate of the Issuer
holds the Security.
33
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding, the principal thereon ceases to be payable and interest on it
ceases to accrue unless the Trustee and the Issuer receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal, interest and additional interest, if any,
payable on that date with respect to the Securities (or portions thereof) to be
redeemed or maturing, as the case may be, and the Paying Agent is not prohibited
from paying such money to the Holders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. TEMPORARY SECURITIES. In the event that
Definitive Securities (as defined in the Appendix) are to be issued under the
terms of this Indenture, until such Definitive Securities are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Issuer considers
appropriate for temporary Securities. Without unreasonable delay, the Issuer
shall prepare and the Trustee shall authenticate Definitive Securities and
deliver them in exchange for temporary Securities upon surrender of such
temporary Securities at the office or agency of the Issuer, without charge to
the Holder.
SECTION 2.11. CANCELATION. The Issuer at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and dispose of them in accordance with its customary procedures
unless instructed in writing by the Issuer. The Issuer may not issue new
Securities to replace Securities it has redeemed, paid or delivered to the
Trustee for cancelation. The Trustee shall not authenticate Securities in place
of canceled Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. DEFAULTED INTEREST. If the Issuer defaults in a
payment of interest on the Securities, the Issuer shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Issuer may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Issuer shall fix or cause to be
fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP AND ISIN NUMBERS. The Issuer in issuing
the Securities 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 as a convenience to Holders; PROVIDED, HOWEVER, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the
34
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer shall notify the Trustee of any change to the "CUSIP"
or "ISIN" numbers.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Issuer elects to
redeem Securities pursuant to paragraph (g) of Section 4.08 or paragraph 5 of
the Securities, it shall notify the Trustee in writing of the redemption date
and the principal amount of Securities to be redeemed.
The Issuer shall give each notice to the Trustee provided for
in this Section 3.01 at least 60 days before the redemption date unless the
Trustee consents to a shorter period. Such notice shall be accompanied by an
Officers' Certificate and an Opinion of Counsel from the Issuer to the effect
that such redemption will comply with the conditions herein. If fewer than all
the Securities are to be redeemed, the record date relating to such redemption
shall be selected by the Issuer and given to the Trustee, which record date
shall be not fewer than 15 days after the date of notice to the Trustee. Any
such notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Issuer promptly
of the Securities or portions of Securities to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. (a) At least 30 days but
not more than 60 days before a date for redemption of Securities, the Issuer
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the
35
redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Issuer defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the
Securities being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
(b) At the Issuer's request, the Trustee shall give the notice
of redemption in the Issuer's name and at the Issuer's expense. In such event,
the Issuer shall provide the Trustee with the information required by this
Section 3.03.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and additional interest, if
any, to the redemption date; PROVIDED, HOWEVER, that if the redemption date is
after a regular record date and on or prior to the interest payment date, the
accrued interest and additional interest, if any, shall be payable to the Holder
of the redeemed Securities registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00
a.m., New York City time, on the redemption date, the Issuer shall deposit with
the Paying Agent (or, if the Issuer or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest and additional interest, if any, on all Securities to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Issuer to the Trustee for
cancelation. On and after the redemption date, interest shall cease to accrue on
Securities or portions thereof called for redemption so long as the Issuer has
deposited with the Paying Agent funds sufficient to pay the principal of, plus
accrued and unpaid interest and additional interest, if any, on, the Securities
to be redeemed.
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SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Issuer shall execute and the Trustee
shall authenticate for the Holder (at the Issuer's expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Issuer shall promptly
pay the principal of and interest and additional interest, if any, on the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal, interest and additional interest, if any, shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay all principal
and interest then due and the Trustee or the Paying Agent, as the case may be,
is not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC REPORTS. Notwithstanding that the Issuer may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Issuer shall file with the SEC, and provide the Trustee and
Holders and prospective Holders (upon request) within 15 days after it files
them with the SEC, copies of its annual report and the information, documents
and other reports that are specified in Sections 13 and 15(d) of the Exchange
Act. In addition, the Issuer shall furnish to the Trustee and the Holders,
promptly upon their becoming available, copies of the annual report to
shareholders and any other information provided by the Issuer or Parent to its
public shareholders generally. The Issuer also shall comply with the other
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuer's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. LIMITATION ON INDEBTEDNESS. (a) The Issuer shall
not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness;
PROVIDED, HOWEVER, that the Issuer or any Restricted Subsidiary may Incur
Indebtedness if on the date of such Incurrence and after giving effect thereto
the Debt to EBITDA Ratio would be less than 6:1; PROVIDED FURTHER, HOWEVER, that
such Indebtedness proposed to be Incurred may not be Senior Indebtedness if on
the date of such Incurrence and after giving effect thereto the Senior Debt to
EBITDA Ratio would be less than 4.5:1.
37
(b) Notwithstanding the foregoing paragraph (a), the Issuer
and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness in an aggregate principal amount not to
exceed $325,000,000 less the aggregate amount of all prepayments of
principal applied to permanently reduce any such Indebtedness;
provided, however, that Bank Indebtedness in excess of $250,000,000 may
only be incurred if, after giving effect to such Incurrence, the Senior
Debt to EBITDA Ratio would be less than 4.5:1;
(ii) Indebtedness of the Issuer owed to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed to and
held by the Issuer or any Wholly Owned Subsidiary; PROVIDED, HOWEVER,
that (1) any subsequent issuance or transfer of any Capital Stock or
any other event that results in any such Wholly Owned Subsidiary
ceasing to be a Wholly Owned Subsidiary or any subsequent transfer of
any such Indebtedness (except to the Issuer or a Wholly Owned
Subsidiary) shall be deemed, in each case, to constitute the Incurrence
of such Indebtedness by the issuer thereof and (2) if the Issuer is the
obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations
with respect to the Securities;
(iii) Indebtedness (1) represented by the Securities and the
Guarantees (not including any Additional Securities), (2) outstanding
on the Closing Date (other than the Indebtedness described in clauses
(i) and (ii) above), (3) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (iii)
(including Indebtedness Refinancing Indebtedness) or Section 4.03(a) or
(4) consisting of guarantees of any Indebtedness permitted under
clauses (i) and (ii) of this paragraph (b);
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Issuer (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Subsidiary of, or was otherwise acquired by, the Issuer);
PROVIDED, HOWEVER, that on the date that such Restricted Subsidiary is
acquired by the Issuer, the Issuer would have been able to Incur $1.00
of additional Indebtedness pursuant to Section 4.03(a) after giving
effect to the Incurrence of such Indebtedness pursuant to this clause
(iv) and (2) Refinancing Indebtedness Incurred by the Issuer or a
Restricted Subsidiary in respect of Indebtedness Incurred pursuant to
this clause (iv);
(v) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by
the Issuer and the Restricted Subsidiaries in the ordinary course of
their business;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations in
38
an aggregate principal amount not in excess of $20,000,000 at any time
outstanding;
(vii) Hedging Obligations of the Issuer or any Guarantor
directly related to Indebtedness permitted to be Incurred by the Issuer
or any Guarantor pursuant to the Indenture for the purpose of fixing or
hedging interest rate risk or currency fluctuations; or
(viii) (1) Indebtedness of another Person Incurred and
outstanding on or prior to the date on which such Person consolidates
with or merges with or into the Issuer (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Person
consolidates with or merges with or into the Issuer); PROVIDED,
HOWEVER, that on the date that such transaction is consummated, the
Issuer would have been able to Incur $1.00 of additional Indebtedness
pursuant to Section 4.03(a) after giving effect to the Incurrence of
such Indebtedness pursuant to this clause (viii) and (2) Refinancing
Indebtedness Incurred by the Issuer or the Successor Issuer in respect
of Indebtedness Incurred pursuant to subclause (1) of this clause
(viii).
(c) Notwithstanding the foregoing, the Issuer shall not Incur
any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are
used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund
or refinance any Subordinated Obligations, unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary
may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded
solely as a result of fluctuations in the exchange rates of currencies. For
purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this Section 4.03:
(i) Indebtedness Incurred pursuant to the Credit Agreement
prior to or on the Closing Date shall be treated as Incurred pursuant
to Section 4.03(b)(i);
(ii) Indebtedness permitted by this Section 4.03 need not be
permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this Section 4.03 permitting
such Indebtedness; and
(iii) in the event that Indebtedness meets the criteria of
more than one of the types of Indebtedness described in this Section
4.03, the Issuer, in its sole discretion, shall classify such
Indebtedness and only be required to include the amount of such
Indebtedness in one of such clauses.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. (a) The
Issuer shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to:
39
(i) declare or pay any dividend or make any distribution on or
in respect of its Capital Stock (including any payment in connection
with any merger or consolidation involving the Issuer or any Subsidiary
of the Issuer) or similar payment to the direct or indirect holders of
its Capital Stock except dividends or distributions payable solely in
its Capital Stock (other than Disqualified Stock or Preferred Stock)
and except dividends or distributions payable to the Issuer or another
Restricted Subsidiary (and, if such Restricted Subsidiary has
shareholders other than the Issuer or other Restricted Subsidiaries, to
its other shareholders on a PRO RATA basis);
(ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of Parent, the Issuer or any Restricted Subsidiary
held by Persons other than the Issuer or another Restricted Subsidiary;
(iii) purchase, repurchase, redeem, defease or otherwise
acquire or retire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment any Subordinated
Obligations (other than the purchase, repurchase or other acquisition
of Subordinated Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case, due within one year of the date of acquisition); or
(iv) make any Investment (other than a Permitted Investment)
in any Person
(any such dividend, distribution, payment, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being herein referred to
as a "Restricted Payment") if at the time the Issuer or such Restricted
Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Issuer could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the
Board of Directors) declared or made subsequent to the Closing Date
would exceed the sum of, without duplication:
(A) (i) 100% of EBITDA accrued during the period
(treated as one accounting period) from the beginning
of the fiscal quarter immediately following the
fiscal quarter during which the Closing Date occurred
to the end of the most recent fiscal quarter for
which financial statements are publicly available
(or, in case such EBITDA shall be a deficit, minus
100% of such deficit), minus
40
(ii) 140% of Consolidated Interest Expense
accrued during the period (treated as one accounting
period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which
the Closing Date occurred to the end of the most
recent fiscal quarter for which financial statements
are publicly available, plus
(iii) $120 million; plus
(B) the aggregate Net Cash Proceeds received by the
Issuer from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Closing Date (other than
(x) an issuance or sale to a Subsidiary of the Issuer, (y) an
issuance or sale to an employee stock ownership plan or other
trust established by the Issuer or any of its Subsidiaries or
(z) to the extent used in accordance with Section
4.04(b)(v)(2) or 4.04(b)(vi)(3)(B)); plus
(C) the aggregate Net Cash Proceeds received by the
Issuer from the sale or other disposition (other than to the
Issuer or a Restricted Subsidiary) of any Investments
previously made by the Issuer or a Restricted Subsidiary and
treated as a Restricted Payment; PROVIDED that the amount
added pursuant to this clause (C) shall not exceed the amount
treated as a Restricted Payment and not previously added
pursuant to this paragraph (3); plus
(D) the amount by which Indebtedness of the Issuer or
its Restricted Subsidiaries is reduced on the Issuer's balance
sheet upon the conversion or exchange (other than by a
Subsidiary of the Issuer) subsequent to the Closing Date of
any Indebtedness of the Issuer or its Restricted Subsidiaries
issued after the Closing Date that is convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of the Issuer (less the amount of any cash or the fair market
value of other property distributed by the Issuer or any
Restricted Subsidiary upon such conversion or exchange); plus
(E) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans or
advances or other transfers of assets to the Issuer or any
Restricted Subsidiary from Unrestricted Subsidiaries or (y)
the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued, in each case, as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Issuer or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments; plus
(F) $5,000,000.
41
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, retirement, defeasance or other
acquisition or retirement for value of Capital Stock or Subordinated
Obligations of the Issuer made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Capital Stock of the Issuer
(other than Disqualified Stock and other than Capital Stock issued or
sold to a Subsidiary of the Issuer or an employee stock ownership plan
or other trust established by the Issuer or any of its Subsidiaries);
PROVIDED, HOWEVER, that:
(1) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments; and
(2) the Net Cash Proceeds from such sale applied in
the manner set forth in this clause (i) shall be excluded from
the calculation of amounts under clause (3)(B) of Section
4.04(a);
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Issuer made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Indebtedness of the Issuer that is
permitted to be Incurred pursuant to Section 4.03(b); PROVIDED,
HOWEVER, that such purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
(iii) any purchase or redemption of Subordinated Obligations
from Net Available Cash to the extent permitted by Section 4.06;
PROVIDED, HOWEVER, that such purchase or redemption shall be excluded
in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with Section 4.04; PROVIDED, HOWEVER, that such dividend
shall be included in the calculation of the amount of Restricted
Payments;
(v) the repurchase or other acquisition of shares of, or
options to purchase shares of, common stock of the Issuer or any of its
Subsidiaries from employees, former employees, consultants, former
consultants, directors or former directors of the Issuer or any of its
Subsidiaries (or permitted transferees of such employees, former
employees, consultants, former consultants, directors or former
directors), pursuant to the terms of agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of
Directors under which such individuals purchase or sell, or are granted
the option to purchase or sell, shares of such common stock; PROVIDED,
HOWEVER, that the aggregate amount of such repurchases, together with
any amounts or other distributions to Parent under Section
4.04(b)(vi)(3), shall not exceed in any calendar year the sum of (1)
$5,000,000 plus (2) the Net Cash Proceeds
42
(A) received since the Closing Date by the Issuer or received by Parent
and contributed to the Issuer from the sale of Capital Stock to
employees, consultants and directors of Parent or the Issuer and (B)
not previously credited to any repurchase or other acquisition of such
shares or options to purchase shares of common stock pursuant to this
clause (b)(v)(2) or clause (b)(vi)(3)(B) of Section 4.04; PROVIDED
FURTHER, HOWEVER, that such repurchases and other acquisitions of
shares, or options to purchase shares of common stock shall be included
in the calculation of the amount of Restricted Payments; and
(vi) payment of dividends, other distributions or other
amounts by the Issuer solely for the purposes set forth in clauses (1)
through (4) below; PROVIDED, HOWEVER, that such dividend, distribution
or amount set forth in clauses (1), (3) and (4) (but not clause (2))
shall be included in the calculation of the amount of Restricted
Payments for the purposes of Section 4.04(a):
(1) to Parent in amounts equal to the amounts
required for Parent to pay franchise taxes and other fees
required to maintain its corporate existence, and provide for
other operating costs of up to $7,500,000 per fiscal year;
(2) to Parent in amounts equal to amounts required
for Parent to pay U.S. federal, state and local income taxes
to the extent such income taxes are attributable to the income
of the Issuer and its Restricted Subsidiaries (and, to the
extent of amounts actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the
extent attributable to the income of such Unrestricted
Subsidiaries);
(3) to Parent in amounts equal to amounts expended by
Parent to repurchase or otherwise acquire shares of, or
options to purchase shares of, common stock of Parent from
employees, former employees, consultants, former consultants,
directors or former directors of Parent, the Issuer or any of
the Issuer's Subsidiaries (or permitted transferees of such
employees, former employees, consultants, former consultants,
directors or former directors), pursuant to the terms of
agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors of
Parent under which such individuals purchase or sell, or are
granted the option to purchase or sell, shares of such common
stock of Parent; provided, however, that the aggregate amount
paid, loaned or advanced to Parent pursuant to this clause
(3), together with the amounts of any repurchases or other
acquisitions under Section 4.04(b)(5), shall not exceed in any
calendar year the sum of (A) $5,000,000 plus (B) the Net Cash
Proceeds received (x) since the Closing Date by the Issuer or
received by Parent and contributed to the Issuer from the sale
of Capital Stock to employees, consultants and directors of
Parent or the Issuer and (y) not previously credited to any
repurchase or other acquisition of such shares or options to
purchase shares of common stock pursuant to this clause
(b)(vi)(3)(y) or clause (b)(v)(2) of Section 4.04; and
43
(4) to Parent in amounts equal to amounts necessary
for Parent to make loans or advances to employees in the
ordinary course of business in accordance with past practices
of the Issuer, but in any event not to exceed, when aggregated
with amounts loaned or advanced under clause (6) of the
definition of "Permitted Investments," $5,000,000 in the
aggregate outstanding at any one time.
SECTION 4.05. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Issuer shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its
Capital Stock or pay any Indebtedness or other obligations owed to the Issuer or
any of its Restricted Subsidiaries;
(b) make any loans or advances to the Issuer or any of its
Restricted Subsidiaries; or
(c) transfer any of its property or assets to the Issuer or
any of its Restricted Subsidiaries, except:
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the date
on which such Restricted Subsidiary was acquired by the Issuer (other
than Indebtedness Incurred as consideration in, in contemplation of, or
to provide all or any portion of the funds or credit support utilized
to consummate the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Issuer) and outstanding on
such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (c)(i) or (c)(ii) of this Section 4.05
or this clause (iii) or contained in any amendment to an agreement
referred to in clause (c)(i) or (c)(ii) of this Section 4.05 or this
clause (iii); PROVIDED, HOWEVER, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment are no less
favorable to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
(iv) in the case of clause (c), any encumbrance or
restriction:
(1) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract; or
44
(2) contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such
encumbrance or restriction restricts the transfer of the
property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(vi) any encumbrance or restriction relating to Purchase Money
Indebtedness or Capitalized Lease Obligations for property acquired in
the ordinary course of business that imposes restrictions on the
ability of the Issuer or a Restricted Subsidiary to sell, lease or
transfer the acquired property to the Issuer or its Restricted
Subsidiaries;
(vii) restrictions on cash or other deposits imposed by
customers under contracts entered into in the ordinary course of
business; and
(viii) any encumbrance or restriction contained in joint
venture agreements and other similar agreements entered into in the
ordinary course of business and customary for such types of agreements.
SECTION 4.06. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY
STOCK. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless:
(i) the Issuer or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the
fair market value, as determined in good faith by the Board of
Directors, of the shares and assets subject to such Asset Disposition;
(ii) at least 75% of the consideration thereof received by the
Issuer or such Restricted Subsidiary is in the form of cash; PROVIDED
that the following shall be deemed to be cash for purposes of this
clause (ii): (1) the amount of any liabilities (as shown on the
Issuer's, or such Restricted Subsidiary's, most recent balance sheet or
in the notes thereto) of the Issuer or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Securities
or the Guarantees) that are assumed by the transferee of any such
assets, (2) the amount of any securities received by the Issuer or such
Restricted Subsidiary from such transferee that are converted by the
Issuer or such Restricted Subsidiary into cash (to the extent of the
cash received) within 90 days following the closing of such Asset
Disposition, (3) the fair market value of any Telecommunications Assets
received by the Issuer in such Asset Disposition and (4) the fair
market value of any Permitted Joint Venture Interests received by the
Issuer or any Restricted Subsidiary in such Asset Disposition; PROVIDED
that the aggregate fair market
45
value of all Permitted Joint Venture Interests received pursuant to
this clause (iv), valued, in each case, at the time of receipt, shall
not exceed 10% of Consolidated Net Tangible Assets (for purposes of
this Section 4.06(a)(ii), all determinations of fair market value shall
be made in good faith by the Board of Directors and evidenced by an
Officers' Certificate delivered to the Trustee); and
(iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Issuer (or such Restricted
Subsidiary, as the case may be):
(1) FIRST, to the extent the Issuer elects (or is
required by the terms of any Indebtedness), to prepay, repay,
redeem, purchase or otherwise acquire Bank Indebtedness of the
Issuer or of a Wholly Owned Subsidiary within 180 days of the
later of the date of such Asset Disposition or the receipt of
such Net Available Cash;
(2) SECOND, to the extent of the balance of Net
Available Cash after application in accordance with clause (1)
of this Section 4.06(a)(iii), to the extent the Issuer or such
Restricted Subsidiary elects to, or enters into a binding
agreement to, reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a Restricted
Subsidiary with cash in an amount equal to the amount of Net
Available Cash received by, or to be received by, the Issuer
or another Restricted Subsidiary) within 180 days of the later
of such Asset Disposition or the receipt of such Net Available
Cash; and
(3) THIRD, to the extent of the balance of such Net
Available Cash after application in accordance with clauses
(1) and (2) of this Section 4.06(a)(iii), to make an Offer (as
defined in clause (b) below) to purchase Securities pursuant
to and subject to the conditions set forth in clause (b)
below; PROVIDED, HOWEVER, that, if the Issuer elects (or is
required by the terms of any other Senior Indebtedness), such
Offer may be made ratably to purchase the Securities and other
Senior Indebtedness of the Issuer;
PROVIDED, HOWEVER, that, in connection with any prepayment, repayment
or purchase of Indebtedness pursuant to clause (1) or (3) of this
Section 4.06(a)(iii), the Issuer or such Restricted Subsidiary shall
retire such Indebtedness and shall cause the related loan commitment
(if any) to be permanently reduced in an amount equal to the principal
amount so prepaid, repaid or purchased.
Upon completion of any Offer, the amount of Net Available Cash
shall be reset at zero and the Issuer shall be entitled to use any remaining
proceeds for any corporate purposes to the extent permitted under this
Indenture. Notwithstanding the foregoing provisions of this Section 4.06, the
Issuer and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.06(a)
46
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this Section 4.06(a) exceeds
$10,000,000.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to clause (iii)(3) of Section 4.06(a), the
Issuer shall be required to offer to purchase Securities tendered pursuant to an
offer by the Issuer for the Securities (an "Offer") at a purchase price of 100%
of their principal amount plus accrued and unpaid interest (including additional
interest, if any) thereon, to the date of purchase in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
Section 4.06(c) and to purchase other Senior Indebtedness on the terms and to
the extent contemplated thereby. The Issuer shall not be required to make an
Offer for Securities (and other Senior Indebtedness) pursuant to this Section
4.06 if the Net Available Cash available therefor (after application of the
proceeds as provided in clauses (iii)(1) and (iii)(2) of Section 4.06(a)) is
less than $10,000,000 for any particular Asset Disposition (which lesser amount
shall be carried forward for purposes of determining whether an Offer is
required with respect to the Net Available Cash from any subsequent Asset
Disposition).
(c) (i) Promptly, and in any event within 10 days after the
Issuer becomes obligated to make an Offer, the Issuer shall be
obligated to deliver to the Trustee and send, by first-class mail to
each Holder, a written notice stating that the Holder may elect to have
his Securities purchased by the Issuer either in whole or in part
(subject to prorating as hereinafter described in the event the Offer
is oversubscribed) in integral multiples of $1,000 of principal amount,
at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such
notice (the "Purchase Date") and shall contain such information
concerning the business of the Issuer which the Issuer in good faith
believes will enable such Holders to make an informed decision (which
at a minimum shall include (1) the most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements) of the
Issuer, the most recent subsequently filed Quarterly Report on Form
10-Q and any Current Report on Form 8-K of the Issuer filed subsequent
to such Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or
corresponding successor reports), (2) a description of material
developments in the Issuer's business subsequent to the date of the
latest of such reports, and (3) if material, appropriate pro forma
financial information) and all instructions and materials necessary to
tender Securities pursuant to the Offer, together with the address
referred to in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Issuer shall
deliver to the Trustee an Officers' Certificate as to (1) the amount of
the Offer (the "Offer Amount"), (2) the allocation of the Net Available
Cash from the Asset Dispositions pursuant to which such Offer is being
made and (3) the compliance of such allocation with the provisions of
Section 4.06(a). On such date, the Issuer shall also irrevocably
deposit with the Trustee or with a paying agent (or, if the Issuer is
acting as its
47
own paying agent, segregate and hold in trust) an amount equal to the
Offer Amount to be invested in Temporary Cash Investments and to be
held for payment in accordance with the provisions of this Section
4.06. Upon the expiration of the period for which the Offer remains
open (the "Offer Period"), the Issuer shall deliver to the Trustee for
cancelation the Securities or portions thereof that have been properly
tendered to and are to be accepted by the Issuer. The Trustee (or the
Paying Agent, if not the Trustee) shall, on the date of purchase, mail
or deliver payment to each tendering Holder in the amount of the
purchase price. In the event that the Offer Amount delivered by the
Issuer to the Trustee is greater than the purchase price of the
Securities (and other Senior Indebtedness) tendered, the Trustee shall
deliver the excess to the Issuer immediately after the expiration of
the Offer Period for application in accordance with this Section 4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly
completed, to the Issuer at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders shall be
entitled to withdraw their election if the Trustee or the Issuer
receives, not later than one Business Day prior to the Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security that was
delivered by the Holder for purchase and a statement that such Holder
is withdrawing his election to have such Security purchased. If at the
expiration of the Offer Period the aggregate principal amount of
Securities and any other Senior Indebtedness included in the Offer
surrendered by holders thereof exceeds the Offer Amount, the Issuer
shall select the Securities and other Senior Indebtedness to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuer so that only Securities and other Senior
Indebtedness in denominations of $1,000, or integral multiples thereof,
shall be purchased). Holders whose Securities are purchased only in
part shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(iv) At the time the Issuer delivers Securities to the Trustee
that are to be accepted for purchase, the Issuer shall also deliver an
Officers' Certificate stating that such Securities are to be accepted
by the Issuer pursuant to and in accordance with the terms of this
Section 4.06. A Security shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails
or delivers payment therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.06. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.06, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
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SECTION 4.07. LIMITATION ON TRANSACTIONS WITH AFFILIATES. (a)
The Issuer shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction or series of
related transactions (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of the Issuer (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms:
(i) that are no less favorable to the Issuer or such
Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with
a Person who is not such an Affiliate;
(ii) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $5,000,000:
(1) are set forth in writing; and
(2) have been approved by a majority of the members
of the Board of Directors having no personal stake, other than
as a holder of Capital Stock of Parent, the Issuer or such
Restricted Subsidiary, in such Affiliate Transaction; and
(iii) that, in the event such Affiliate Transaction involves
an amount in excess of $15,000,000, have been determined by a
nationally recognized appraisal or investment banking firm to be fair,
from a financial standpoint, to the Issuer and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.04;
(ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors;
(iii) the grant of stock options or similar rights to
employees and directors of the Issuer pursuant to plans approved by the
Board of Directors;
(iv) loans or advances to employees in the ordinary course of
business in accordance with past practices of the Issuer, but in any
event not to exceed $10,000,000 in the aggregate outstanding at any one
time;
(v) the payment of reasonable fees to directors of the Issuer
and its Subsidiaries who are not employees of the Issuer or its
Subsidiaries;
(vi) any transaction between the Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries;
49
(vii) customary indemnification and insurance arrangements in
favor of officers, directors, employees and consultants of Parent, the
Issuer or any of the Restricted Subsidiaries;
(viii) payments by the Issuer or any of its Restricted
Subsidiaries to Fox Xxxxx & Company, LLC and its Affiliates for any
financial advisory, financing, underwriting or other placement services
or in respect of other investment banking activities, including,
without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the members of the Board
of Directors referred to in clause (a)(ii)(2) above in good faith;
(ix) the existence of, or the performance by the Issuer or any
of its Restricted Subsidiaries of the obligations under the terms of,
any stockholders agreements (including any registration rights
agreement or purchase agreement related thereto) to which it is a party
as of the Closing Date, as such agreements may be amended from time to
time pursuant to the terms thereof; PROVIDED, HOWEVER, that the terms
of any such amendment are no less favorable to the Holders than the
terms of any such agreements in effect as of the Closing Date; and
(x) the issuance of Capital Stock (other than Disqualified
Stock) of the Issuer for cash to any Permitted Holder.
SECTION 4.08. CHANGE OF CONTROL. (a) Upon a Change of Control,
each Holder shall have the right to require that the Issuer repurchase all or
any part of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount thereof plus accrued and unpaid interest (including
additional interest, if any) 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), in accordance with the terms
contemplated in Section 4.08(b); PROVIDED, HOWEVER, that notwithstanding the
occurrence of a Change of Control, the Issuer shall not be obligated to purchase
the Securities pursuant to this Section 4.08 in the event that it has exercised
its right to redeem all the Securities under paragraph 5 of the Securities. In
the event that at the time of such Change of Control the terms of the Bank
Indebtedness restrict or prohibit the repurchase of Securities pursuant to this
Section 4.08, then prior to the mailing of the notice to Holders provided for in
Section 4.08(b) below but in any event within 30 days following any Change of
Control, the Issuer shall:
(i) repay in full all Bank Indebtedness or, if doing so will
allow the repurchase of the Securities, offer to repay in full all Bank
Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer; or
(ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the
Securities as provided for in Section 4.08(b).
50
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Issuer
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Issuer to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest (including additional
interest, if any) thereon, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuer, consistent
with this Section 4.08, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Issuer at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuer receives, not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security that was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Issuer under this Section 4.08 shall be delivered to the Trustee for
cancelation, and the Issuer shall pay the purchase price plus accrued and unpaid
interest and additional interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section
4.08, the Issuer shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in Section 4.08(b) applicable to a Change of Control Offer made by the Issuer
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
(f) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.08. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.08, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.08 by virtue
thereof.
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(g) In the event that Holders of not less than 98% of the
principal amount of the outstanding Securities accept a Change of Control Offer
and the Issuer purchases all of the Securities held by such Holders, the Issuer
shall have the right, on not less than 30 nor more than 60 days' prior notice,
given not more than 30 days following the purchase pursuant to the Change of
Control Offer, to redeem all of the Securities that remain outstanding following
such purchase at the purchase price specified in the Change of Control Offer
plus, to the extent not included in the purchase price specified in the Change
of Control Offer, accrued and unpaid interest (including additional interest, if
any) thereon to the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest on the relevant interest
payment date). Any redemption of Securities pursuant to this paragraph (g) shall
be subject to, and made in accordance with, the provisions and requirements of
Article III.
SECTION 4.09. COMPLIANCE CERTIFICATE. The Issuer shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Issuer
an Officers' Certificate, one of the signers of which is the chief executive
officer, chief financial officer or chief accounting officer, stating that in
the course of the performance by the signers of their duties as Officers of the
Issuer they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Issuer is
taking or proposes to take with respect thereto. The Issuer also shall comply
with Section 314(a)(4) of the TIA.
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS. Upon request of
the Trustee, the Issuer shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. FUTURE GUARANTORS. The Issuer shall cause each
Domestic Subsidiary to become a Guarantor and execute and deliver to the Trustee
a supplemental indenture substantially in the form of Exhibit C pursuant to
which such Domestic Subsidiary shall Guarantee payment of the Securities. Each
Guarantee shall be limited to an amount not to exceed the maximum amount that
can be Guaranteed by that Domestic Subsidiary without rendering the Guarantee,
as it relates to such Domestic Subsidiary, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 4.12. LIMITATION ON LINES OF BUSINESS. The Issuer
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Related Business.
SECTION 4.13. LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES. The Issuer shall not sell or otherwise dispose
of any shares of Capital Stock of a Restricted Subsidiary, and shall not permit
any Restricted Subsidiary, directly or indirectly, to issue or sell or otherwise
dispose of any shares of its Capital Stock except:
52
(i) to the Issuer or a Wholly Owned Subsidiary;
(ii) if, immediately after giving effect to such issuance,
sale or other disposition, neither the Issuer nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary; or
(iii) if, immediately after giving effect to such issuance or
sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after
giving effect thereto would have been permitted to be made under
Section 4.04 if made on the date of such issuance, sale or other
disposition.
The proceeds of any sale of such Capital Stock permitted hereby shall be treated
as Net Available Cash from an Asset Disposition and shall be applied in
accordance with Section 4.06.
SECTION 4.14. LIMITATION ON LIENS. The Issuer shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
permit to exist any Lien on any of its property or assets (including Capital
Stock of a Restricted Subsidiary), whether owned at the Closing Date or
thereafter acquired, other than Permitted Liens, without effectively providing
that the Securities shall be secured equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so secured.
SECTION 4.15. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The
Issuer shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (a) the
Issuer or such Restricted Subsidiary would be entitled to (i) Incur Indebtedness
in an amount equal to the Attributable Debt with respect to such Sale/Leaseback
Transaction pursuant to Section 4.03 and (ii) create a Lien on such property
securing such Attributable Debt without equally and ratably securing the
Securities pursuant to Section 4.14, (b) the net proceeds received by the Issuer
or such Restricted Subsidiary in connection with such Sale/Leaseback Transaction
are at least equal to the fair market value of such property and (c) the
transfer of such property is permitted by, and the Issuer applies the proceeds
of such transaction in compliance with, Section 4.06.
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.01. WHEN ISSUER MAY MERGE OR TRANSFER ASSETS. (a)
The Issuer shall not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Issuer") shall be a corporation organized and existing under
the laws of the United States of America, any state thereof or the
District of Columbia, and the Successor Issuer (if not the Issuer)
shall expressly assume, by a supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee,
53
all the obligations of the Issuer under the Securities and this
Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Issuer or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Issuer or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Issuer would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(v) the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders shall not recognize income,
gain or loss for Federal income tax purposes as a result of such
transaction and shall be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred.
Notwithstanding the foregoing clauses (ii) and (iii), the
Issuer may merge with an Affiliate incorporated or formed solely for the purpose
of reincorporating the Issuer in another jurisdiction.
The Successor Issuer shall succeed to, and be substituted for,
and may exercise every right and power of, this Issuer under the Indenture, but
the predecessor Issuer, in the case of a conveyance, transfer or lease of all or
substantially all its assets, shall not be released from the obligation to pay
the principal of and interest on the Securities.
(b) The Issuer shall not permit any Guarantor to consolidate
with or merge with or into, or convey, transfer or lease all or substantially
all of its assets to, any Person unless:
(i) the resulting, surviving or transferee Person will be a
corporation organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia, and such
Person (if not such Guarantor) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of such Guarantor
under its Guarantee;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as
having been Incurred by such Person at the time of such transaction),
no Default shall have occurred and be continuing; and
54
(iii) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
Notwithstanding the foregoing clause (ii), any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Issuer or another Restricted Subsidiary.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs
if:
(a) the Issuer defaults in any payment of interest or
additional interest on any Security when the same becomes due and payable, and
such default continues for a period of 30 days;
(b) the Issuer (i) defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated Maturity, upon
required redemption or repurchase, upon declaration or otherwise, or (ii) fails
to redeem or purchase Securities when required pursuant to this Indenture or the
Securities;
(c) the Issuer fails to comply with Section 5.01;
(d) the Issuer fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14 or 4.15 (other than a failure to
purchase Securities when required under Section 4.06 or 4.08) and such failure
continues for 30 days after the notice to the Issuer specified below;
(e) the Issuer fails to comply with any of its agreements in
the Securities or this Indenture (other than those referred to in clause (a),
(b), (c) or (d) above) and such failure continues for 60 days after the notice
to the Issuer specified below;
(f) Indebtedness of the Issuer or any Subsidiary (other than
Indebtedness owing to the Issuer or a Subsidiary of the Issuer) is not paid
within any applicable grace period after final maturity or the acceleration of
such Indebtedness by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $5,000,000 or its
foreign currency equivalent at the time and such failure continues for 10 days
after the notice to the Issuer specified below;
(g) the Issuer or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case;
55
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Issuer or any Significant
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Issuer or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money in excess
of $5,000,000 or its foreign currency equivalent against the Issuer or any
Subsidiary of the Issuer, to the extent such judgment or decree is not covered
by insurance or is in excess of insurance coverage, and there is a period of 60
days following the entry of such judgment or decree during which such judgment
or decree is not discharged, waived or the execution thereof stayed; or
(j) any Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Guarantor or Person acting
by or on behalf of such Guarantor denies or disaffirms its obligations under
this Indenture or any Guarantee and such Default continues for 10 days after the
notice to the Issuer specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, XXXXXX XXXXXX CODE,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (d), (e) or (f) above is not an Event
of Default until the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Issuer of the Default and the Issuer
does not cure such Default
56
within the time specified after receipt of such notice. Such notice must specify
the Default, demand that it be remedied and state that such notice is a "Notice
of Default."
The Issuer shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (f) or (i) and any event which, with the
giving of notice or the lapse of time, would become an Event of Default under
clause (d), (e) or (i), its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than
an Event of Default specified in Section 6.01(g) or (h) with respect to the
Issuer) occurs and is continuing, the Trustee by notice to the Issuer, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Issuer, may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(g) or (h) with respect to the Issuer occurs,
the principal of and interest on all the Securities shall IPSO FACTO become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. The Holders of a majority in principal amount of
the Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. OTHER REMEDIES. Notwithstanding any other
provision of the Indenture, if an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
or interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding in its own name and as
trustee of an express trust even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Security, (b) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
the terms of this Indenture or (c) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
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SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
PROVIDED, HOWEVER, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. LIMITATION ON SUITS. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder has previously given to the Trustee written
notice stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to it against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of, and additional interest and interest on, the
Securities held by such Holder, on or after the respective due dates expressed
or provided for in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Issuer, any Subsidiary or Guarantor,
their creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, and any additional
interest without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, interest and
any additional interest, respectively; and
THIRD: to the Issuer.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Issuer a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. Neither the
Issuer nor any Guarantor (to the extent it may lawfully do so) shall 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, that may affect the covenants or the performance of this
Indenture; and the Issuer and each Guarantor (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein
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granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise 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 such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(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 and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (i), (ii) and (iii) of this Section
7.01.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
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(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) 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 and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may
conclusively rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its reasonable
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) 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, order, approval, bond,
debenture, note or other paper or document or as to whether or not an Event of
Default shall have occurred unless requested in writing to do so by the Holders
of not less than a majority in principal amount of the Securities at the time
outstanding, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters or occurrence as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney.
(g) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action;
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(h) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Section 6.01(a) or Section 6.01(b), (ii) any Default or Event of Default
which a Responsible Officer of the Trustee has actual knowledge thereof or (iii)
any Default or Event of Default with respect to which written notice of any
event which is in fact a Default or Event of Default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(i) 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 each agent, custodian and other Person employed
by the Trustee to act hereunder; and
(j) the Trustee may request that the Issuer deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or co-paying
agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Issuer's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication. The Trustee shall not be responsible
for any conduct or omission by the Issuer or the occurrence of any Event of
Default.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a Responsible Officer. Except in the case of a Default
in payment of principal of or interest on any Security (including payments
pursuant to the mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each
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Holder a brief report dated as of May 15 that complies with Section 313(a) of
the TIA. The Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Issuer agrees to notify promptly the Trustee whenever
the Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Issuer shall pay
to the Trustee from time to time such compensation for its services as shall be
agreed in writing by the Issuer and the Trustee. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall immediately reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents (including agents that are not full-time
employees of the Trustee or are not regularly employed by the Trustee), counsel,
accountants and experts. The Issuer and each Guarantor, jointly and severally,
shall indemnify, defend and hold harmless the Trustee against any and all loss,
liability damage, claim or expense (including reasonable attorneys' fees)
incurred by or in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Issuer of any
claim (whether asserted by the Issuer, any Holder, or any other Person) for
which it may seek indemnity promptly upon obtaining actual knowledge thereof;
PROVIDED, HOWEVER, that any failure so to notify the Issuer shall not relieve
the Issuer or any Guarantor of its indemnity obligations hereunder. The Issuer
shall defend the claim and the indemnified party shall provide reasonable
cooperation at the Issuer's expense in the defense. Such indemnified parties may
have separate counsel, and the Issuer and the Guarantors, as applicable, shall
pay the fees and expenses of such counsel; PROVIDED, HOWEVER, that the Issuer
shall not be required to pay such fees and expenses if it assumes such
indemnified parties' defense and, in such indemnified parties' reasonable
judgment, there is no conflict of interest between the Issuer and the
Guarantors, as applicable, and such parties in connection with such defense. The
Issuer need not reimburse any expense or indemnify, defend or hold harmless
against any loss, liability or expense incurred by an indemnified party through
such party's own wilful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest and additional interest, if any, on
particular Securities.
The Issuer's obligations pursuant to this Section 7.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(g) or (h) with respect to the Issuer, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
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SECTION 7.08. REPLACEMENT OF TRUSTEE. (a) The Trustee may
resign at any time by so notifying the Issuer in writing in accordance with the
provisions of Section 11.02. The Holders of a majority in principal amount of
the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Issuer shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction at the expense of the Issuer and the Guarantors for the
appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section 7.08, the Issuer's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
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In case, at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force that it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $75,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
ISSUER. The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES;
DEFEASANCE. (a) When (i) the Issuer delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III hereof, and the Issuer irrevocably deposits with the
Trustee funds or U.S. Government Obligations on which payment of principal and
interest when due will be sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Issuer pays all other sums payable hereunder by the
Issuer, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Issuer.
(b) Subject to Sections 8.01(c) and 8.02, the Issuer at any
time may terminate (i) all of its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and
4.15 and the operation of Sections 5.01(a)(iii), 5.01(a)(iv), 6.01(d), 6.01(f),
6.01(g) (with respect to Significant
65
Subsidiaries of the Issuer only), 6.01(h) (with respect to Significant
Subsidiaries of the Issuer only) and 6.01(i) ("covenant defeasance option"). The
Issuer may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. In the event that the Issuer
terminates all of its obligations under the Securities and this Indenture by
exercising its legal defeasance option, the obligations under the Guarantees
shall each be terminated simultaneously with the termination of such
obligations.
If the Issuer exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Issuer exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d),
6.01(f), 6.01(g) (with respect to Significant Subsidiaries of the Issuer only),
6.01(h) (with respect to Significant Subsidiaries of the Issuer only) or 6.01(i)
or because of the failure of the Issuer to comply with clauses (iii) and (iv) of
Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article VIII shall survive until the Securities have been paid in full.
Thereafter, the Issuer's obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE. The Issuer may
exercise its legal defeasance option or its covenant defeasance option only if:
(a) the Issuer irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal, premium (if
any) and interest and additional interest (if any) on the Securities to maturity
or redemption, as the case may be;
(b) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium and interest (including additional
interest, if any) when due on all the Securities to maturity or redemption, as
the case may be;
(c) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(g) or (h) with respect to
the Issuer occurs which is continuing at the end of the period;
(d) the deposit does not constitute a default under any other
agreement binding on the Issuer;
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(e) the Issuer delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment Company Act
of 1940;
(f) in the case of the legal defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred;
(g) in the case of the covenant defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred; and
(h) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as contemplated by
this Article VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. REPAYMENT TO ISSUER. The Trustee and the Paying
Agent shall promptly turn over to the Issuer upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Issuer upon written request any money held
by them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to the money must look to the Issuer
for payment as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Issuer
shall pay and shall indemnify, defend and hold harmless the Trustee against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
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SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII 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 obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; PROVIDED, HOWEVER, that, if
the Issuer has made any payment of principal of, or interest or additional
interest on, any Securities because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Issuer, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; PROVIDED, HOWEVER, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to add additional Guarantees with respect to the
Securities or to secure the Securities;
(v) to add to the covenants of the Issuer for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Issuer;
(vi) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(vii) to make any change that does not adversely affect the
rights of any Holder; or
(viii) to provide for the issuance of the Exchange Securities
or Additional Securities, which shall have terms substantially
identical in all material respects to the Original Securities (except
that the transfer restrictions contained in the Original Securities
shall be modified or eliminated, as appropriate), and which shall be
treated, together with any outstanding Original Securities, as a single
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issue of securities.
After an amendment under this Section 9.01 becomes effective,
the Issuer shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Issuer, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Holder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange for the
Securities). However, without the consent of each Holder affected, an amendment
may not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest or any additional interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article III;
(v) make any Security payable in money other than that stated
in the Security;
(vi) impair the right of any Holder to receive payment of
principal of, and interest or any additional interest on, such Holder's
Securities on or after the due dates therefore or to institute suit for
the enforcement of any payment on or with respect to such Holder's
Securities.
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(viii) modify the Guarantees in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective,
the Issuer shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
(a) A consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date on which the Trustee receives an Officers'
Certificate from the Issuer certifying that the requisite number of consents
have been received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the (i) receipt
by the Issuer or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuer
and the Trustee.
(b) The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment, the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Issuer and
the Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
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ARTICLE X
GUARANTEES
SECTION 10.01. GUARANTEES. (a) Each Guarantor hereby jointly
and severally irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, to each Holder and to the Trustee and its successors
and assigns (i) the full and punctual payment when due, whether at Stated
Maturity, by acceleration, by redemption or otherwise, of all obligations of the
Issuer under this Indenture (including obligations to the Trustee) and the
Securities, whether for payment of principal of, interest on or additional
interest, if any, in respect of the Securities and all other monetary
obligations of the Issuer under this Indenture and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent from each such Guarantor, and
that each such Guarantor shall remain bound under this Article X notwithstanding
any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of, payment
from and protest to the Issuer of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Guarantor waives notice of any
default under the Securities or the Guaranteed Obligations. The obligations of
each Guarantor hereunder shall not be affected by (i) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or remedy
against the Issuer or any other Person under this Indenture, the Securities or
any other agreement or otherwise, (ii) any extension or renewal of any thereof,
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement, (iv) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them, (v) the failure of any Holder or Trustee to exercise
any right or remedy against any other guarantor of the Guaranteed Obligations or
(vi) any change in the ownership of such Guarantor, except as provided in
Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Guarantors, such
that such Guarantor's obligations would be less than the full amount claimed.
Each Guarantor hereby waives any right to which it may be entitled to have the
assets of the Issuer first be used and depleted as payment of the Issuer's or
such Guarantor's obligations hereunder prior to any amounts being claimed from
or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Issuer be sued prior to an action
being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
71
(e) Except as expressly set forth in Sections 8.01(b), 10.02
and 10.06, the obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Securities or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
(f) Each Guarantor agrees that its Guarantee shall remain in
full force and effect until payment in full of all the Guaranteed Obligations.
Each Guarantor further agrees that its Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest or additional interest, if any, on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of
any other right that any Holder or the Trustee has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Issuer to pay the
principal of or interest or additional interest, if any, on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary obligations of the Issuer to the Holders
and the Trustee.
(h) Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article VI, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section 10.01.
72
(i) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Guarantor shall execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 10.02. LIMITATION ON LIABILITY. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture, as it relates to such Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
(b) A Guarantee as to any Guarantor shall terminate and be of
no further force or effect and such Guarantor shall be deemed to be released
from all obligations under this Article X upon (i)(1) the merger or
consolidation of such Guarantor with or into any Person other than the Issuer or
a Subsidiary or Affiliate of the Issuer where such Guarantor is not the
surviving entity of such consolidation or merger or (2) the sale by the Issuer
or any Subsidiary of the Issuer (or any pledgee of the Issuer) of the Capital
Stock, or all or substantially all the assets, of any Guarantor that is a
Subsidiary of the Issuer, where, after such sale, such Guarantor is no longer a
Subsidiary of the Issuer; PROVIDED, HOWEVER, that each such merger,
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Sections 4.06 and
5.01(b), (ii) the failure of any Guarantor that is a Subsidiary of the Issuer to
remain a Subsidiary of the Issuer as a result of any foreclosure of any pledge
or security interest securing Bank Indebtedness or other exercise of remedies in
respect thereof; PROVIDED, HOWEVER, that such Guarantor shall also be released
from its guarantees of the Credit Agreement and that all pledges and security
interests granted in connection with the Credit Agreement shall be terminated or
(iii) the release of any Guarantor from its guarantees of, and the termination
of all pledges and security interests granted in connection with, the Credit
Agreement and any other Indebtedness of the Issuer in respect of which such
Guarantor has provided a guarantee. At the request of the Issuer, the Trustee
shall execute and deliver an appropriate instrument evidencing such release.
SECTION 10.03. SUCCESSORS AND ASSIGNS. This Article X shall be
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04. NO WAIVER. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege
73
under this Article X shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article X at law,
in equity, by statute or otherwise.
SECTION 10.05. MODIFICATION. No modification, amendment or
waiver of any provision of this Article X, nor the consent to any departure by
any Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE
GUARANTORS. Each Subsidiary that is required to become a Guarantor pursuant to
Section 4.11 shall promptly execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit C hereto pursuant to which such Subsidiary
shall become a Guarantor under this Article X and shall guarantee the Guaranteed
Obligations. Concurrently with the execution and delivery of such supplemental
indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel and an
Officers' Certificate to the effect that such supplemental indenture has been
duly authorized, executed and delivered by such Subsidiary and that, subject to
the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Guarantee of such Guarantor is a legal, valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or conflicts with another provision that is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. NOTICES. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Issuer:
74
Alaska Communications Systems Holdings, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention of:
Xxxxx X. Xxxxxxxx
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of:
Corporate Trust Administration
Facsimile: (000) 000-0000
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed
to the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
75
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. WHEN SECURITIES DISREGARDED. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuer,
any Guarantor or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any Guarantor
shall be disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 11.08. LEGAL HOLIDAYS. A "Legal Holiday" is a
Saturday, Sunday or other day on which banking institutions in the State of New
York are authorized or required by law to close. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No RECOURSE AGAINST OTHERS. A director,
officer, employee or stockholder, as such, of the Issuer shall not have any
liability for any
76
obligations of the Issuer under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 11.11. SUCCESSORS. All agreements of the Issuer and
each Guarantor in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.13. TABLE OF CONTENTS; HEADINGS. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 11.14. DESIGNATION. The Issuer and the Guarantors
hereby designate the Securities and the Guarantees as Designated Senior
Indebtedness for purposes of the Indenture dated as of May 14, 1999, among the
Issuer, the guarantors party thereto and The Bank of New York, as successor to
IBJ Whitehall Bank & Trust Company, as Trustee.
77
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.
by
/s/ Xxxxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
by
/s/ Xxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
ALASKA COMMUNICATIONS SYSTEMS
GROUP, INC.
by
/s/ Xxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
78
ACS OF THE NORTHLAND, INC.
ACS OF ALASKA, INC.
ACS OF FAIRBANKS, INC.
ACS OF ANCHORAGE, INC.
ACS WIRELESS, INC.
ACS LONG DISTANCE, INC.
ACS INTERNET, INC.
ACS MESSAGING, INC.
ACS INFOSOURCE, INC.
ACS OF ALASKA LICENSE SUB, INC.
ACS OF THE NORTHLAND LICENSE SUB, INC.
ACS OF FAIRBANKS LICENSE SUB, INC.
ACS OF ANCHORAGE LICENSE SUB, INC.
ACS WIRELESS LICENSE SUB, INC.
ACS LONG DISTANCE LICENSE SUB, INC.
ACS TELEVISION LICENSE SUB, INC.
ACS SERVICES, INC.
by
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
ACS TELEVISION, L.L.C.
by: ACS of Anchorage, Inc.,
its sole member
by
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
THE BANK OF NEW YORK, as Trustee
by
/s/ Van X. Xxxxx
---------------------------------------
Name: Van X. Xxxxx
Title: Vice President
APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS.
1.1. DEFINITIONS. For the purposes of this Appendix, the
following terms shall have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security to
the extent applicable to such transaction and as in effect from time to time.
"Definitive Securities Legend" means the legend set forth
under that caption in Exhibit A to this Indenture.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that includes the Definitive
Securities Legend but that does not include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means X.X. Xxxxxx Securities Inc., CIBC
World Markets Corp., Citigroup Global Markets Inc., Xxxxxxxxx & Company, Inc.
and Xxxxxxx Xxxxx & Associates.
"Purchase Agreement" means (a) the Purchase Agreement dated
August 15, 2003, among the Issuer, the Guarantors and the Initial Purchasers and
(b) any other similar Purchase Agreement relating to Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means an offer by the Issuer,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial Securities,
a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (a) the Exchange and
Registration Rights Agreement dated August 26, 2003, among the Issuer, the
Guarantors and the Initial
2
Purchasers and (b) any other similar Exchange and Registration Rights Agreement
relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period," with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Issuer in connection with the offer and sale of Initial Securities
pursuant to the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.02. OTHER DEFINITIONS.
Term: Defined in Section:
---- -------------------
"Agent Members"................................................................. 2.1(b)
"IAI Global Security"........................................................... 2.1(a)
"Global Security"............................................................... 2.1(a)
"Regulation S Global Security".................................................. 2.1(a)
"Rule 144A Global Security"..................................................... 2.1(a)
2. THE SECURITIES.
3
2.1. FORM AND DATING. The Initial Securities issued on the
date hereof will be (i) offered and sold by the Issuer pursuant to the Purchase
Agreement and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A
and (2) Persons other than U.S. Persons (as defined in Regulation S) in reliance
on Regulation S. Such Initial Securities may thereafter be transferred to, among
others, QIBs, purchasers in reliance on Regulation S and, except as set forth
below, IAIs in accordance with Rule 501.
(a) GLOBAL SECURITIES. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in
definitive, fully registered form (collectively, the "Rule 144A Global
Security") and Regulation S Securities shall be issued initially in the
form of one or more global Securities (collectively, the "Regulation S
Global Security"), in each case without interest coupons and bearing
the Global Securities Legend and Restricted Securities Legend, which
shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Securities Custodian, and registered in
the name of the Depositary or a nominee of the Depositary, duly
executed by the Issuer and authenticated by the Trustee as provided in
this Indenture. One or more global securities in definitive, fully
registered form without interest coupons and bearing the Global
Securities Legend and the Restricted Securities Legend (collectively,
the "IAI Global Security") shall also be issued on the Closing Date,
deposited with the Securities Custodian, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the
Issuer and authenticated by the Trustee as provided in this Indenture
to accommodate transfers of beneficial interests in the Securities to
IAIs subsequent to the initial distribution. Beneficial ownership
interests in the Regulation S Global Security shall not be exchangeable
for interests in the Rule 144A Global Security, the IAI Global Security
or any other Security without a Restricted Securities Legend until the
expiration of the Restricted Period. The Rule 144A Global Security, the
IAI Global Security and the Regulation S Global Security are each
referred to herein as a "Global Security" and are collectively referred
to herein as "Global Securities." The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or
its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the
Depositary.
The Issuer shall execute and the Trustee shall, in accordance
with this Section 2.1(b) and pursuant to an order of the Issuer, authenticate
and deliver initially one or more Global Securities that (i) shall be registered
in the name of the Depositary for such Global Security or Global Securities or
the nominee of such Depositary and (ii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions or held by the
Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global
4
Security, and the Depositary may be treated by the Issuer, the Trustee and any
agent of the Issuer or the Trustee as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global
Security.
(c) DEFINITIVE SECURITIES. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Securities.
2.2. AUTHENTICATION. The Trustee shall authenticate and make
available for delivery upon a written order of the Issuer signed by two Officers
(a) Original Securities for original issue on the date hereof in an aggregate
principal amount of $182,000,000, (b) subject to the terms of this Indenture,
Additional Securities in an unlimited aggregate principal amount and (c) the
Exchange Securities for issue only in a Registered Exchange Offer pursuant to a
Registration Agreement and for a like principal amount of Initial Securities
exchanged pursuant thereto. Such order shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
outstanding at any time is unlimited.
2.3. TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF
DEFINITIVE SECURITIES. When Definitive Securities are presented to the Registrar
with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuer
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(ii) are accompanied by the following additional information
and documents, as applicable:
(1) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in the form set forth on the reverse side of the
Original Security); or
5
(2) if such Definitive Securities are being transferred to the
Issuer, a certification to that effect (in the form set forth
on the reverse side of the Original Security); or
(3) if such Definitive Securities are being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or in reliance upon another
exemption from the registration requirements of the Securities
Act, (x) a certification to that effect (in the form set forth
on the reverse side of the Initial Security) and (y) if the
Issuer so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section
2.3(e)(i).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not
be exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the
Issuer and the Registrar, together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.4, the
Issuer shall issue and the Trustee shall authenticate, upon written order of the
Issuer in the form of an Officers' Certificate, a new Global Security in the
appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. (i) The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected
6
through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Security shall deliver a written order given in
accordance with the Depositary's procedures containing information
regarding the participant account of the Depositary to be credited with
a beneficial interest in such Global Security or another Global
Security and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Security and
the account of the Person making the transfer shall be debited by an
amount equal to the beneficial interest in the Global Security being
transferred. Transfers by an owner of a beneficial interest in the Rule
144A Global Security or the IAI Global Security to a transferee who
takes delivery of such interest through the Regulation S Global
Security, whether before or after the expiration of the Restricted
Period, shall be made only upon receipt by the Trustee of a
certification from the transferor to the effect that such transfer is
being made in accordance with Regulation S or (if available) Rule 144
under the Securities Act. In the case of a transfer of a beneficial
interest in either the Regulation S Global Security or the Rule 144A
Global Security for an interest in the IAI Global Security, the
transferee must furnish a signed letter substantially in the form of
Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of the Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Issuer.
7
(d) RESTRICTIONS ON TRANSFER OF REGULATION S GLOBAL SECURITY.
(i) During the Restricted Period, beneficial ownership interests in the
Regulation S Global Security may only be sold, pledged or transferred
in accordance with the Applicable Procedures and only (A) to the
Issuer, (B) so long as such security is eligible for resale pursuant to
Rule 144A, to a person whom the selling holder reasonably believes is a
QIB that purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, (C) in an offshore transaction in accordance
with Regulation S, (D) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 (if applicable) under the
Securities Act, (E) to an IAI purchasing for its own account, or for
the account of such an IAI, in a minimum principal amount of Securities
of $250,000 or (F) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to
the expiration of the Restricted Period, transfers by an owner of a
beneficial interest in the Regulation S Global Security to a transferee
who takes delivery of such interest through the Rule 144A Global
Security or the IAI Global Security shall be made only in accordance
with Applicable Procedures and upon receipt by the Trustee of a written
certification from the transferor of the beneficial interest in the
form provided on the reverse of the Initial Security to the effect that
such transfer is being made to (i) a person whom the transferor
reasonably believes is a QIB within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A or (ii) an IAI
purchasing for its own account, or for the account of such an IAI, in a
minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the
Restricted Period. In the case of a transfer of a beneficial interest
in the Regulation S Global Security for an interest in the IAI Global
Security, the transferee must furnish a signed letter substantially in
the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
this Indenture.
(e) LEGEND. (i) Except as permitted by the following
paragraphs (ii), (iii) or (iv), each Security certificate evidencing
the Global Securities and the Definitive Securities (and all Securities
issued in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form (each defined term in the
legend being defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
8
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
"THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH
IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS][IN THE CASE OF REGULATION S NOTES: 40
DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E)
OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
9
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After a transfer of any Initial Securities during the
period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Securities, all requirements pertaining to the
Restricted Securities Legend on such Initial Securities shall cease to
apply and the requirements that any such Initial Securities be issued
in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial
Securities that Initial Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall
continue to apply.
(f) CANCELATION OR ADJUSTMENT OF GLOBAL SECURITY. At such time
as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, transferred, redeemed, repurchased
or canceled, such Global Security shall be returned by the Depositary
to the Trustee for cancelation or retained and canceled by the Trustee.
At any time prior to such cancelation, if any beneficial interest in a
Global Security is exchanged for Definitive Securities, transferred in
exchange for an interest in another Global Security, redeemed,
repurchased or canceled, the principal amount of Securities represented
by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the
Securities Custodian for such Global Security) with
10
respect to such Global Security, by the Trustee or the Securities
Custodian, to reflect such reduction.
(g) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES. (i) To permit registrations of transfers and exchanges, the
Issuer shall execute, and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.06, 4.08 and
9.05 of this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Issuer, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Issuer, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) NO OBLIGATION OF THE TRUSTEE. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in the Depositary or any other
Person with respect to the accuracy of the records of the Depositary or
its nominee or of any participant or member thereof, with respect to
any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the
Securities shall be given or made only to the registered Holders (which
shall be the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depositary subject to the applicable
rules and procedures of the Depositary. The Trustee may rely and shall
be fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any beneficial
owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this
11
Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global
Security) 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.
2.4. DEFINITIVE SECURITIES. (a) A Global Security deposited
with the Depositary or with the Trustee as Securities Custodian pursuant to
Section 2.1 or issued in connection with a Registered Exchange Offer shall be
transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Issuer
that it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Issuer within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Issuer, in its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of certificated
Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section 2.4 shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Issuer will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Definitive Securities Legend]
FOR PURPOSES OF SECTIONS 1272 AND 1273 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE
DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $966.87
AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $33.13, IN EACH CASE PER $1,000
PRINCIPAL AMOUNT AT MATURITY OF THIS SECURITY. THE ISSUE DATE OF THIS SECURITY
IS AUGUST 26, 2003. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO
MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 10.5% PER ANNUM.
[Global Securities Legend](1)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER 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 SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS
----------
(1) If the Security is to be issued in global form, add the Global
Securities Legend and the attachment from Exhibit A captioned "[TO BE ATTACHED
TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY."
2
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES
3
AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
No. $__________
9 7/8% Senior Note due 2011
CUSIP No. ______
ISIN No. ______
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., a Delaware
corporation, promises to pay to Cede & Co., or registered assigns, the
principal sum [of Dollars][listed on the Schedule of
Increases or Decreases in Global Security attached hereto](2) on August
15, 2011.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
----------
(2) Use the Schedule of Increases and Decreases language if Note is in
global form.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.
by
____________________________________
Name:
Title:
by
____________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:__________________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 7/8% Senior Note due 2011
1. INTEREST
(a) ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., a Delaware
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Issuer"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Issuer shall pay interest semiannually on February 15 and
August 15 of each year. Interest on the Securities shall accrue from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from August 26, 2003 until the
principal hereof is due. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months. The Issuer shall pay interest on overdue principal
at the rate borne by the Securities plus 1% per annum, and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful.
(B) ADDITIONAL INTEREST. The Holder of this Security is
entitled to the benefits of an Exchange and Registration Rights Agreement, dated
August 26, 2003, among the Issuer and each of Alaska Communications Systems
Holdings, Inc., a Delaware corporation, (the "Issuer"), and each of Alaska
Communications Systems Group, Inc., a Delaware corporation ("Parent"), ACS of
the Northland, Inc., ACS of Alaska, Inc., ACS of Fairbanks, Inc., ACS of
Anchorage, Inc., ACS Wireless, Inc., ACS Long Distance, Inc., ACS Television,
L.L.C., ACS Internet, Inc., ACS Messaging, Inc., ACS InfoSource, Inc., ACS of
Alaska License Sub, Inc., ACS of the Northland License Sub, Inc., ACS of
Fairbanks License Sub, Inc., ACS of Anchorage License Sub, Inc., ACS Wireless
License Sub, Inc., ACS Long Distance License Sub, Inc., ACS Television License
Sub, Inc. and ACS Services, Inc. (collectively, the "Guarantors") and the
Initial Purchasers named therein (the "Registration Agreement"). Capitalized
terms used in this paragraph (b) but not defined herein have the meanings
assigned to them in the Registration Agreement. As more fully set forth therein,
the Registration Agreement provides if (i) the Shelf Registration Statement is
not declared effective on or prior to 180 days after the Issue Date (or in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or the applicable interpretations of Commission's staff, if later,
on or prior to 60 days after publication of the change in law or
interpretation), (ii) the Registered Exchange Offer is not consummated on or
prior to 180 days after the Issue Date, or (iii) the Shelf Registration
Statement is filed and declared effective on or prior to 180 days after the
Issue Date (or in the case of a Shelf Registration Statement required to be
filed in response to a change in law or the applicable interpretations of
Commission's staff, if later, on or prior to 60 days after publication of the
change in law or interpretation) but shall thereafter cease to be effective (at
any time that the Issuer and the Guarantors are obligated to maintain the
effectiveness thereof) without being succeeded within 45 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iii), a "Registration Default"), the Issuer and the
Guarantors will be jointly
2
and severally obligated to pay additional interest to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $ 0.192 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder until (i) the Registered
Exchange Offer is consummated, (ii) the Shelf Registration Statement is declared
effective or (iii) the Shelf Registration Statement again becomes effective, as
the case may be. As used herein, the term "Transfer Restricted Securities" means
(i) each Security until the date on which such Security has been exchanged for a
freely transferable Exchange Security in the Registered Exchange Offer, (ii)
each Security until the date on which it has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) each Security until the date on which it is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act. All accrued additional interest shall
be paid to Holders in the same manner as interest payments on the Securities on
semiannual payment dates that correspond to interest payment dates for the
Securities. Following the cure of all Registration Defaults, the accrual of
additional interest shall cease. The Trustee shall have no responsibility with
respect to the determination of the amount of any such additional interest.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuer shall pay principal, premium, if
any, additional interest, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, if any, additional interest, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuer will make all payments in respect of a certificated Security
(including principal, premium, if any, additional interest, if any, and
interest) at the office of the Paying Agent, except that, at the option of the
Company, payment of interest or additional interest may be made by mailing a
check to the registered address of each Holder thereof; PROVIDED, HOWEVER, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3
3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Issuer issued the Securities under an Indenture dated as
of August 26, 2003 (the "Indenture"), among the Issuer, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Securities are senior unsecured obligations of the Issuer.
The Securities include the Initial Securities and any Exchange Securities issued
in exchange for Initial Securities pursuant to the Indenture. The Initial
Securities and any Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Issuer and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make Asset Dispositions. The Indenture also imposes limitations on the ability
of the Issuer to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Issuer.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Issuer under the
Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors have jointly and severally
unconditionally guaranteed the Guaranteed Obligations on a senior unsecured
basis pursuant to the terms of the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuer prior to August 15, 2007.
Thereafter, the Securities shall be redeemable at the option of the Issuer, in
whole or in part, on not less than 30 nor more than 60 days' prior notice, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest (and additional
4
interest, if any) thereon, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on August 15 of the years set forth below:
REDEMPTION
YEAR PRICE
---------------------------------------------
2007 104.938%
2008 103.292%
2009 101.646%
2010 and thereafter 100.000%
In addition, prior to August 15, 2006, the Issuer may redeem
up to a maximum of 35% of the original aggregate principal amount of the
Securities with the Net Cash Proceeds of one or more Equity Offerings (i) by the
Issuer or (ii) by Parent to the extent the Net Cash Proceeds thereof are
contributed to the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from the Issuer, at a redemption price equal
to 109.875% of the principal amount thereof, plus accrued and unpaid interest
(including additional interest, if any) on the Securities, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); PROVIDED, HOWEVER,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption by
the Issuer shall be made within 90 days of such related Equity Offering by the
Issuer or Parent, as the case may be, and must be made upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Notes being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. SINKING FUND
The Securities are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at the registered address of such Holder.
Securities in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. If money sufficient to pay the redemption price of
and accrued and unpaid interest (including additional interest, if any) on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
8. REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
ASSET DISPOSITIONS
5
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuer to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest (including additional interest, if
any) thereon to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of purchase) as provided
in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
10. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest or
additional interest, if any, remains unclaimed for two years, the Trustee or
Paying Agent shall pay the money back to the Issuer at its written request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Issuer deposits with the Trustee money or U.S. Government Obligations for
the payment of principal, premium (if any) and interest (including additional
interest, if any) on the Securities to redemption or maturity, as the case may
be.
13. AMENDMENT, WAIVER
6
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any past
default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Issuer and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency, (ii) to comply with Article V of the
Indenture, (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities, (iv) to add Guarantees with respect to the
Securities, (v) to secure the Securities, (vi) to add additional covenants or to
surrender rights and powers conferred on the Issuer, (vii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, (viii) to make any change that does not adversely
affect the rights of any Holder or (ix) to provide for the issuance of the
Exchange Securities or Additional Securities.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Issuer occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such Holder
has previously given the Trustee notice that an Event of Default is continuing,
(ii) Holders of at least 25% in principal amount of the outstanding Securities
have requested the Trustee in writing to pursue the remedy, (iii) such Holders
have offered the Trustee reasonable security or indemnity against any loss,
liability or expense, (iv) the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of security or indemnity
and (v) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction inconsistent with such request
within such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The
7
Trustee, however, may refuse to follow any direction that conflicts with law or
the Indenture or that the Trustee determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Issuer or any Guarantor shall not have any liability for any obligations of the
Issuer under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP AND ISIN NUMBERS
The Issuer has caused CUSIP and ISIN numbers to be printed on
the Securities and has directed the Trustee to use CUSIP and ISIN numbers in
notices of
8
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption, and reliance may be placed only on the other
identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________ agent to transfer this Security on the
books of the Issuer. The agent may substitute another to act for him.
Date: _______________ Your Signature:_______________________________________
Sign exactly as your name appears on the
other side of this Security. Signature must
be guaranteed by a participant in a
recognized signature guaranty medallion
program or other signature guarantor
acceptable to the Trustee.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the
Securities Act of 1933; or
(6) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements; or
2
(7) [ ] pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered holder thereof; PROVIDED, HOWEVER,
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
_______________________________
Your Signature
Signature Guarantee:
Date: ___________________ _____________________________________
Signature must be guaranteed Signature of Signature Guarantee
by a participant in a
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
_________________________________________________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ _______________________________________________
NOTICE: To be executed by an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of Decrease in Amount of Increase in Principal Amount of This Signature of Authorized
Exchange Principal Amount of This Principal Amount of This Global Security Following Signatory of Trustee or
Global Security Global Security Such Decrease or Increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Issuer pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof): $_____________
Date: __________________ Your Signature: _______________________________________
(Sign exactly as your name appears on the other side of the Security.)
Signature Guarantee:____________________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Definitive Securities Legend]
FOR PURPOSES OF SECTIONS 1272 AND 1273 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE
DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $966.87
AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $33.13, IN EACH CASE PER $1,000
PRINCIPAL AMOUNT AT MATURITY OF THIS SECURITY. THE ISSUE DATE OF THIS SECURITY
IS AUGUST 26, 2003. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO
MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 10.5% PER ANNUM.
[Global Securities Legend(3)]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER 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 SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $__________
9 7/8% Senior Note due 2011
CUSIP No. ______
ISIN No. ______
----------
(3) If the Security is to be issued in global form, add the Global
Securities Legend and the attachment from Exhibit A captioned "[TO BE ATTACHED
TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY."
2
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., a Delaware corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum of
________ Dollars] [listed on the Schedule of Increases or Decreases in Global
Security attached hereto](4) on August 15, 2011.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
----------
(4) Use the Schedule of Increases and Decreases language if Note is in
global form.
3
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.
by
____________________________________
Name:
Title:
by
____________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:__________________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 7/8% Senior Note due 2011
1. INTEREST
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., a Delaware
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Issuer"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Issuer shall pay interest semiannually on February 15 and
August 15 of each year. Interest on the Securities shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from August 26, 2003. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months. The Issuer shall pay interest on overdue principal at
the rate borne by the Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuer shall pay principal, premium, if
any, and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal,
premium, if any, and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Issuer. The
Issuer will make all payments in respect of a certificated Security (including
principal, premium, if any, and interest) at the office of the Paying Agent,
except that, at the option of the Company, payment of interest or additional
interest may be made by mailing a check to the registered address of each Holder
thereof; PROVIDED, HOWEVER, that payments on the Securities may also be made, in
the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, THE BANK OF NEW YORK, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
2
4. INDENTURE
The Issuer issued the Securities under an Indenture dated as
of August 26, 2003 (the "Indenture"), among the Issuer, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Securities are senior unsecured obligations of the Issuer.
The Securities include the Initial Securities and any Exchange Securities issued
in exchange for Initial Securities pursuant to the Indenture. The Initial
Securities and any Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Issuer and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make Asset Dispositions. The Indenture also imposes limitations on the ability
of the Issuer to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of the property of the Issuer.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Issuer under the
Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors have jointly and severally
unconditionally guaranteed the Guaranteed Obligations on a senior unsecured
basis pursuant to the terms of the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuer prior to August 15, 2007.
Thereafter, the Securities shall be redeemable at the option of the Issuer, in
whole or in part, on not less than 30 nor more than 60 days prior notice, at the
following redemption prices (expressed as percentages of principal amount), plus
accrued and unpaid interest (and additional interest, if any) thereon, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the
3
relevant interest payment date), if redeemed during the 12-month period
commencing on August 15 of the years set forth below:
REDEMPTION
YEAR PRICE
-------------------------------------------------------------
2007 104.938%
-------------------------------------------------------------
2008 103.292%
-------------------------------------------------------------
2009 101.646%
-------------------------------------------------------------
2010 and thereafter 100.000%
In addition, prior to August __, 2006, the Issuer may redeem
up to a maximum of 35% of the original aggregate principal amount of the
Securities with the Net Cash Proceeds of one or more Equity Offerings (i) by the
Issuer or (ii) by Parent to the extent the Net Cash Proceeds thereof are
contributed to the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from the Issuer, at a redemption price equal
to 109.875% of the principal amount thereof, plus accrued and unpaid interest
(including additional interest, if any) on the Securities, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); PROVIDED, HOWEVER,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities remains (calculated giving effect
to any issuance of Additional Securities) outstanding. Any such redemption by
the Issuer shall be made within 90 days of such related Equity Offering by the
Issuer or Parent, as the case may be, and must be made upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Notes being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. SINKING FUND
The Securities are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at the registered address of such Holder.
Securities in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. If money sufficient to pay the redemption price of
and accrued and unpaid interest (including additional interest, if any), on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
8. REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL AND
ASSET DISPOSITIONS
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuer to repurchase
4
all or any part of the Securities of such Holder at a purchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued
and unpaid interest (including additional interest, if any) thereon to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date that is on or
prior to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. PERSONS DEEMED OWNERS
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest or
additional interest, if any, remains unclaimed for two years, the Trustee or
Paying Agent shall pay the money back to the Issuer at its written request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Issuer deposits with the Trustee money or U.S. Government Obligations for
the payment of principal, premium (if any) and interest (including additional
interest, if any) on the Securities to redemption or maturity, as the case may
be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written
5
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities and (ii) any past default or noncompliance with any
provision may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder of
Securities, the Issuer and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency, (ii) to comply
with Article V of the Indenture, (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities, (iv) to add Guarantees
with respect to the Securities, (v) to secure the Securities, (vi) to add
additional covenants or to surrender rights and powers conferred on the Issuer,
(vii) to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA, (viii) to make any change that
does not adversely affect the rights of any Holder or (ix) to provide for the
issuance of the Exchange Securities or Additional Securities.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Issuer occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Securities unless (i) such Holder
has previously given the Trustee notice that an Event of Default is continuing,
(ii) Holders of at least 25% in principal amount of the outstanding Securities
have requested the Trustee in writing to pursue the remedy, (iii) such Holders
have offered the Trustee reasonable security or indemnity against any loss,
liability or expense, (iv) the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of security or indemnity
and (v) the Holders of a majority in principal amount of the outstanding
Securities have not given the Trustee a direction inconsistent with such request
within such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Securities are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or that the Trustee determines is unduly prejudicial
to the rights of any other
6
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Issuer or any Guarantor shall not have any liability for any obligations of the
Issuer under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP AND ISIN NUMBERS
The Issuer has caused CUSIP and ISIN numbers to be printed on
the Securities and has directed the Trustee to use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of
7
redemption, and reliance may be placed only on the other identification numbers
placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________ agent to transfer this Security on the books
of the Issuer. The agent may substitute another to act for him.
Date: ______________ Your Signature: __________________________________
Sign exactly as your name appears on the
other side of this Security. Signature must
be guaranteed by a participant in a
recognized signature guaranty medallion
program or other signature guarantor
acceptable to the Trustee.
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The following
increases or decreases in this Global Security have been made:
Date of Amount of Decrease in Amount of Increase in Principal Amount of This Signature of Authorized
Exchange Principal Amount of This Principal Amount of This Global Security Following Signatory of Trustee or
Global Security Global Security Such Decrease or Increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Issuer pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof): $_____________
Date: __________________ Your Signature: _________________________________
(Sign exactly as your name appears on the
other side of the Security.)
Signature Guarantee:_______________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among
[GUARANTOR] (the "New Guarantor"), a subsidiary of
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC. (or its
successor), a Delaware corporation (the "Issuer"),
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC., a Delaware
corporation ("Parent"), ACS OF THE NORTHLAND, INC.,
ACS OF ALASKA, INC., ACS OF FAIRBANKS, INC., ACS OF
ANCHORAGE, INC., ACS WIRELESS, INC., ACS LONG
DISTANCE, INC., ACS TELEVISION, L.L.C., ACS INTERNET,
INC., ACS MESSAGING, INC., ACS INFOSOURCE, INC., ACS
OF ALASKA LICENSE SUB, INC., ACS OF THE NORTHLAND
LICENSE SUB, INC., ACS OF FAIRBANKS LICENSE SUB,
INC., ACS OF ANCHORAGE LICENSE SUB, INC., ACS
WIRELESS LICENSE SUB, INC., ACS LONG DISTANCE LICENSE
SUB, INC., ACS TELEVISION LICENSE SUB, INC. and ACS
SERVICES, INC. and THE BANK OF NEW YORK, a New York
banking corporation, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Issuer and Alaska Communications Systems Group,
Inc., a Delaware corporation ("Parent"), ACS of the Northland, Inc., ACS of
Alaska, Inc., ACS of Fairbanks, Inc., ACS of Anchorage, Inc., ACS Wireless,
Inc., ACS Long Distance, Inc., ACS Television, L.L.C., ACS Internet, Inc., ACS
Messaging, Inc., ACS InfoSource, Inc., ACS of Alaska License Sub, Inc., ACS of
the Northland License Sub, Inc., ACS of Fairbanks License Sub, Inc., ACS of
Anchorage License Sub, Inc., ACS Wireless License Sub, Inc., ACS Long Distance
License Sub, Inc., ACS Television License Sub, Inc. and ACS Services, Inc. (the
"Existing Guarantors") have heretofore executed and delivered to the Trustee an
Indenture (the "Indenture") dated as of August 26, 2003, providing for the
issuance of an unlimited amount of 9 7/8% Senior Notes due 2011 (the
"Securities");
WHEREAS Section 4.11 of the Indenture provides that under
certain circumstances the Issuer is required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Issuer's obligations
under the Securities pursuant to a Guarantee on the terms and conditions set
forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Issuer and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
2
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Issuer, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees,
jointly and severally with all the Existing Guarantors, to unconditionally
guarantee the Issuer's obligations under the Securities on the terms and subject
to the conditions set forth in Article X of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Securities.
2. RATIFICATION OF INDENTURE; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
_________________________________
Name:
Title:
3
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.,
by
_________________________________
Name:
Title:
ACS OF THE NORTHLAND, INC.
ACS OF ALASKA, INC.
ACS OF FAIRBANKS, INC.
ACS OF ANCHORAGE, INC.
ACS WIRELESS, INC.
ACS LONG DISTANCE, INC.
ACS INTERNET, INC.
ACS MESSAGING, INC.
ACS INFOSOURCE, INC.
ACS OF ALASKA LICENSE SUB, INC.
ACS OF THE NORTHLAND LICENSE SUB, INC.
ACS OF FAIRBANKS LICENSE SUB, INC.
ACS OF ANCHORAGE LICENSE SUB, INC.
ACS WIRELESS LICENSE SUB, INC.
ACS LONG DISTANCE LICENSE SUB, INC.
ACS TELEVISION LICENSE SUB, INC.
ACS SERVICES, INC.
by
______________________________________
Name:
Title:
ACS TELEVISION, L.L.C.
by: ACS of Anchorage, Inc.,
its sole member
by
__________________________________
Name:
Title:
0
XXX XXXX XX XXX XXXX
as Trustee,
by
__________________________________
Name:
Title:
EXHIBIT D
Form of
Transferee Letter of Representation
Alaska Communications Systems Holdings, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 9 7/8% Senior Notes due 2011 (the "Securities") of Alaska
Communications Systems Holdings, Inc. (the "Issuer").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Issuer or any
affiliate of the Issuer was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Issuer, (b)
pursuant to a registration statement that has been declared effective under the
Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified
2
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Issuer and the
Trustee, which letter shall provide, among other things, that the transferee is
an institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act and that it is acquiring such
Securities for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Issuer and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Issuer and the Trustee.
TRANSFEREE:_________________,
by:_______________________
