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CAPROCK COMMUNICATIONS CORP., as Issuer
and
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
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INDENTURE
Dated as of May 18, 1999
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$210,000,000 Aggregate Principal Amount
11 1/2% Senior Notes due 2009, Series A
11 1/2% Senior Notes due 2009, Series B
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..................................................................1
Section 1.01. Definitions...............................................................1
Section 1.02. Other Definitions........................................................33
Section 1.03. Rules of Construction....................................................34
Section 1.04. Form of Documents Delivered to Trustee...................................34
Section 1.05. Acts of Holders..........................................................35
Section 1.06. Notices, etc., to the Trustee and the Issuer.............................35
Section 1.07. Notice to Holders; Waiver................................................36
Section 1.08. Conflict with Trust Indenture Act........................................36
Section 1.09. Effect of Headings and Table of Contents.................................37
Section 1.10. Successors and Assigns...................................................37
Section 1.11. Separability Clause......................................................37
Section 1.12. Benefits of Indenture....................................................37
Section 1.13. GOVERNING LAW............................................................37
Section 1.14. No Recourse Against Others...............................................37
Section 1.15. Independence of Covenants................................................38
Section 1.16. Exhibits.................................................................38
Section 1.17. Counterparts.............................................................38
Section 1.18. Duplicate Originals......................................................38
ARTICLE 2 NOTE FORMS.............................................................................38
Section 2.01. Form and Dating..........................................................38
ARTICLE 3 THE NOTES..............................................................................39
Section 3.01. Title and Terms..........................................................39
Section 3.02. Registrar and Paying Agent...............................................39
Section 3.03. Execution and Authentication.............................................40
Section 3.04. Temporary Notes..........................................................41
Section 3.05. Transfer and Exchange....................................................42
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes..............................43
Section 3.07. Payment of Interest; Interest Rights Preserved...........................43
Section 3.08. Persons Deemed Owners....................................................45
Section 3.09. Cancellation.............................................................45
Section 3.10. Computation of Interest..................................................45
Section 3.11. Legal Holidays...........................................................45
Section 3.12. CUSIP and CINS Numbers...................................................46
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Section 3.13. Paying Agent To Hold Money in Trust......................................46
Section 3.14. Treasury Notes...........................................................46
Section 3.15. Deposits of Monies.......................................................47
Section 3.16. BookEntry Provisions for Global Notes....................................47
Section 3.17. Special Transfer Provisions..............................................48
ARTICLE 4 DEFEASANCE OR COVENANT DEFEASANCE......................................................53
Section 4.01. Termination of Issuer's Obligations......................................52
Section 4.02. Defeasance and Discharge of Indenture....................................53
Section 4.03. Defeasance of Certain Obligations........................................55
Section 4.04. Application of Trust Money...............................................57
Section 4.05. Repayment to Issuer......................................................57
Section 4.06. Reinstatement............................................................57
ARTICLE 5 REMEDIES...............................................................................58
Section 5.01. Events of Default........................................................58
Section 5.02. Acceleration of Maturity, Rescission and Annulment.......................59
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee..........60
Section 5.04. Trustee May File Proofs of Claims........................................61
Section 5.05. Trustee May Enforce Claims Without Possession of Notes...................62
Section 5.06. Application of Money Collected...........................................62
Section 5.07. Limitation on Suits......................................................63
Section 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest.....................................................63
Section 5.09. Restoration of Rights and Remedies.......................................64
Section 5.10. Rights and Remedies Cumulative...........................................64
Section 5.11. Delay or Omission Not Waiver.............................................64
Section 5.12. Control by Majority......................................................64
Section 5.13. Waiver of Past Defaults..................................................65
Section 5.14. Undertaking for Costs....................................................65
Section 5.15. Waiver of Stay, Extension or Usury Laws..................................65
Section 5.16. Unconditional Right of Holders To Receive Payment........................66
ARTICLE 6 THE TRUSTEE............................................................................66
Section 6.01. Certain Duties and Responsibilities......................................66
Section 6.02. Notice of Defaults.......................................................67
Section 6.03. Certain Rights of Trustee................................................67
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Notes
or Application of Proceeds Thereof.......................................69
Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc......................69
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Section 6.06. Money Held in Trust......................................................69
Section 6.07. Compensation and Indemnification of Trustee and Its Prior
Claim....................................................................70
Section 6.08. Conflicting Interests....................................................70
Section 6.09. Corporate Trustee Required; Eligibility..................................71
Section 6.10. Resignation and Removal; Appointment of Successor Trustee...............71
Section 6.11. Acceptance of Appointment by Successor...................................73
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business...................................................73
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER.......................................74
Section 7.01. Preservation of Information; Issuer To Furnish Trustee
Names and Addresses of Holders...........................................74
Section 7.02. Communications of Holders................................................75
Section 7.03. Reports by Trustee.......................................................75
Section 7.04. Reports by Issuer........................................................75
ARTICLE 8 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.............................................76
Section 8.01. Issuer May Consolidate, etc., Only on Certain Terms......................76
Section 8.02. Successor Substituted....................................................77
ARTICLE 9 SUPPLEMENTAL INDENTURES AND WAIVERS....................................................78
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders...............................................78
Section 9.02. Supplemental Indentures, Agreements and Waivers With
Consent of Holders.......................................................79
Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers.............80
Section 9.04. Effect of Supplemental Indentures........................................80
Section 9.05. Conformity with Trust Indenture Act......................................80
Section 9.06. Reference in Notes to Supplemental Indentures............................80
Section 9.07. Record Date..............................................................81
Section 9.08. Revocation and Effect of Consents........................................81
ARTICLE 10 COVENANTS..............................................................................81
Section 10.01. Payment of Principal, Premium and Interest...............................81
Section 10.02. Maintenance of Office or Agency..........................................82
Section 10.03. Money for Note Payments To Be Held In Trust..............................82
Section 10.04. Corporate Existence......................................................84
Section 10.05. Payment of Taxes and Other Claims........................................84
Section 10.06. Maintenance of Properties................................................84
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Section 10.07. Insurance................................................................85
Section 10.08. Books and Records........................................................85
Section 10.09. Compliance Certificates and Opinions.....................................85
Section 10.10. Repurchase of Notes Upon a Change of Control.............................86
Section 10.11. Limitation on Indebtedness...............................................86
Section 10.12. Statement by Officers as to Default......................................86
Section 10.13. Limitation on Restricted Payments........................................87
Section 10.14. Limitation on Transactions with Stockholders and Affiliates..............91
Section 10.15. Limitation on Asset Sales................................................92
Section 10.16. Limitation on Liens......................................................93
Section 10.17. Intentionally Omitted....................................................93
Section 10.18. Limitation on the Issuance and Sale of Capital Stock
of Restricted Subsidiaries...............................................93
Section 10.19. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries........................................94
Section 10.20. Limitation on SaleLeaseback Transactions.................................96
Section 10.21. Limitation on Restrictive Covenants......................................97
Section 10.22. Commission Reports and Reports to Holders................................97
Section 10.23. Limitation on Issuances of Guarantees by Restricted Subsidiaries.........97
ARTICLE 11 SATISFACTION AND DISCHARGE.............................................................98
Section 11.01. Satisfaction and Discharge of Indenture..................................98
Section 11.02. Application of Trust Money...............................................99
ARTICLE 12 REDEMPTION............................................................................100
Section 12.01. Right of Redemption; Mandatory Redemption...............................100
Section 12.02. Notice to the Trustee...................................................101
Section 12.03. Selection of Notes to be Redeemed.......................................101
Section 12.04. Notice of Redemption....................................................101
Section 12.05. Effect of Notice of Redemption..........................................102
Section 12.06. Deposit of Redemption Price.............................................103
Section 12.07. Notes Redeemed in Part..................................................103
EXHIBITS
Exhibit A-1 Form of Series A Note
Exhibit A-2 Form of Series B Notes
Exhibit B Form of Legend for Book-Entry Securities
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Exhibit C Form of Certificate To Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
Exhibit D Form of Certificate To Be Delivered in Connection
with Transfers Pursuant to Regulation S
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Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of May 18, 1999
Trust
Indenture Act Indenture
Section Section
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Section 310 (a)(1)............................................. 6.09
(a)(2)............................................. 6.09
(a)(3)............................................. Not applicable
(a)(4)............................................. Not applicable
(b)................................................ 6.08, 6.10
Section 311 (a)................................................ 6.07
(b)................................................ 6.07
(c)................................................ Not Applicable
Section 312 (a)................................................ 3.05, 7.01
(b)................................................ 7.02
(c)................................................ 7.02
Section 313 (a)................................................ 7.03
(b)................................................ 7.03
(c)................................................ 7.03
(d)................................................ 7.03
Section 314 (a)................................................ 7.04, 10.09
(b)................................................ Not Applicable
(c)(1)............................................. 1.04, 4.02, 4.03,
11.01(c)
(c)(2)............................................. 1.04, 4.02, 4.03,
11.01(c)
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.04, 10.09
Section 315 (a)................................................ 6.01(a)
(b)................................................ 6.02
(c)................................................ 6.01(b)
(d)................................................ 6.01(c)
(e)................................................ 5.14
Section 316 (a) (last sentence)................................ 3.14
(a)(1)(A).......................................... 5.12
(a)(1)(B).......................................... 5.13
(a)(2)............................................. Not Applicable
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Trust
Indenture Act Indenture
Section Section
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(b)................................................ 5.08
Section 317 (a)(1)............................................. 5.03
(a)(2)............................................. 5.04
(b)................................................ 10.03
Section 318 (a)................................................ 1.08
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INDENTURE, dated as of May 18, 1999, between CAPROCK COMMUNICATIONS
CORP. (the "Issuer") and CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(the "Trustee").
RECITALS
The Issuer has duly authorized the creation of an issue of (i) 11 1/2%
Senior Notes due 2009, Series A (the "Initial Notes"), and (ii) 11 1/2% Senior
Notes due 2009, Series B, to be issued in exchange for the Initial Notes
pursuant to the Registration Rights Agreement (the "Exchange Notes" and,
together with the Initial Notes and the Private Exchange Notes, the "Notes",
treated as a single class of securities under this Indenture), of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Issuer
has duly authorized the execution and delivery of this Indenture.
All things necessary have been done to make the Notes, when executed
by the Issuer and authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer and to make this Indenture a valid
agreement of the Issuer and the Trustee in accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by the Issuer or a Restricted Subsidiary; provided that
Indebtedness of such Person which is redeemed, defeased, retired or otherwise
repaid at the time of or immediately upon consummation of the transaction by
which such Person becomes a Restricted Subsidiary or such Asset Acquisition
shall not be Acquired Indebtedness.
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"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Issuer and its Restricted Subsidiaries for
such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing Adjusted Consolidated Net Income (without
duplication):
(i) the net income (or loss) of any Person (other than a Restricted
Subsidiary) in which any Person (other than the Issuer or any of its
Restricted Subsidiaries) has a joint interest and the net income (or loss)
of any Unrestricted Subsidiary, except
(x) with respect to net income, to the extent of the amount of
dividends or other distributions actually paid in cash to the Issuer
or any of its Restricted Subsidiaries by such other Person or such
Unrestricted Subsidiary during such period and
(y) with respect to net losses, to the extent of the amount of
cash contributed by the Issuer or any Restricted Subsidiary to such
Person during such period;
(ii) the net income (or loss) of any Person acquired by the Issuer or
any of its Restricted Subsidiaries in a pooling-of-interests transaction
for any period prior to the date of the related acquisition;
(iii) the net income of any Restricted Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable to Asset
Sales;
(v) any net after-tax extraordinary or non-recurring gains or losses;
(vi) any gain or loss, net of taxes, realized upon the termination of
any employee benefit plan; and
(vii) any compensation or other expense paid or payable solely with
Capital Stock (other than Redeemable Stock) of the Issuer or any options,
warrants or other rights to acquire such Capital Stock.
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"Adjusted Consolidated Net Tangible Assets" means the total amount of
assets of the Issuer and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in conformity with GAAP), minus (i) all current
liabilities of the Issuer and its Restricted Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly or annual consolidated balance sheet of the
Issuer and its Restricted Subsidiaries, prepared in conformity with GAAP and
filed with the Commission or provided to the Trustee pursuant to Section 10.22
hereof.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Acquisition" means (i) an investment by the Issuer or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Issuer or any of its Restricted Subsidiaries; provided that such
Person's primary business is related, ancillary or complementary to the
businesses of the Issuer and its Restricted Subsidiaries on the date of such
investment or (ii) an acquisition by the Issuer or any of its Restricted
Subsidiaries of the property and assets of any Person other than the Issuer or
any of its Restricted Subsidiaries that constitute substantially all of a
division or line of business of such Person; provided that the property and
assets acquired are related, ancillary or complementary to the businesses of the
Issuer and its Restricted Subsidiaries on the date of such acquisition.
"Asset Disposition" means the sale or other disposition by the Issuer
or any of its Restricted Subsidiaries (other than to the Issuer or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets of a
division or line of business of the Issuer or any of its Restricted
Subsidiaries.
"Asset Sale" means any direct or indirect sale, transfer or lease or
other disposition (including by way of merger, consolidation or sale-leaseback
transaction) in one transaction or a series of related transactions by the
Issuer or any of its Restricted Subsidiaries to any Person other than the Issuer
or any of its Restricted Subsidiaries of:
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(i) all or any of the Capital Stock of any Restricted Subsidiary,
(ii) all or substantially all of the property and assets of an
operating unit or business of the Issuer or any of its Restricted
Subsidiaries, or
(iii) any other property and assets of the Issuer or any of its
Restricted Subsidiaries outside the ordinary course of business of the
Issuer or such Restricted Subsidiary other than the Capital Stock of or
Investment in an Unrestricted Subsidiary
that, with respect to each of (i), (ii) and (iii), is not governed Article Eight
hereof; provided that "Asset Sale" shall not include:
(a) sales, transfers or other dispositions of assets, whether in
one transaction or a series of related transactions occurring within
one year, involving assets with a fair market value not in excess of
$1.0 million in any transaction or series of related transactions,
(b) contemporaneous exchanges by the Issuer or any Restricted
Subsidiary of Telecommunications Assets for other Telecommunications
Assets in the ordinary course of business, including fiber swaps and
partitioning of switches; provided that the applicable
Telecommunications Assets received by the Issuer or such Restricted
Subsidiary have at least substantially equal fair market value to the
Telecommunications Assets disposed of, or
(c) sales, transfers or other dispositions of assets that have
become uneconomic, obsolete or worn-out.
"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
federal or state law relating to bankruptcy, insolvency, receivership, or relief
of debtors or the law of any other jurisdiction relating to bankruptcy,
insolvency, or relief of debtors or any amendment to, succession to or change in
any such law.
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"Board of Directors" means, with respect to any Person, its Board of
Directors, general partner(s), manager(s), or similar governing body.
"Board Resolution" means a copy of a resolution delivered to the
Trustee that is certified by the Secretary or an Assistant Secretary of the
Issuer to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
New York or in Philadelphia, Pennsylvania are authorized or obligated by law,
regulation or executive order to close.
"Calculation Date" means, with respect to the Incurrence of any
Indebtedness by the Issuer or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the Issue
Date or issued thereafter, including, without limitation, all Common Stock and
Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations under a Capitalized Lease.
"Cedel" means Cedel Bank, Societe Anonyme.
"Change of Control" shall be deemed to occur if:
(i) the sale, conveyance, transfer or lease of all or substantially
all of the assets of the Issuer to any Person or "group" (as such term is
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act, including any
group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than to one or more Permitted Holders and/or one or more Restricted
Subsidiaries, shall have occurred,
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(ii) any Person or "group" (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act including any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than any Permitted Holder (or
group that includes a Permitted Holder), becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total
voting power of all classes of the Voting Stock of the Issuer (including
any warrants, options or rights to acquire such Voting Stock), calculated
on a fully diluted basis,
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Issuer (together with any directors whose election or appointment by the
Board of Directors of the Issuer or whose nomination for election by the
stockholders of the Issuer was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of
Directors of the Issuer then in office or
(iv) the merger, amalgamation or consolidation of the Issuer with or
into another Person or the merger of another Person with or into the Issuer
shall have occurred, and the securities of the Issuer that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of 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 that
represent, immediately after giving effect to such transaction, at least a
majority of the aggregate voting power of the Voting Stock of the surviving
Person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock of
such Person, whether outstanding on the Issue Date or issued thereafter,
including, without limitation, all series and classes of such common stock.
"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income,
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(i) Consolidated Interest Expense,
(ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses
or sales of assets),
(iii) depreciation expense,
(iv) amortization expense,
(v) all other non-cash items reducing Adjusted Consolidated Net Income
(other than items that will require cash payments and for which an accrual
or reserve is, or is required by GAAP to be, made), and
(vi) costs directly related to the Transaction or the offering of the
1998 Senior Notes and expensed by the Issuer in accordance with GAAP on or
prior to December 31, 1998,
less all non-cash items increasing Adjusted Consolidated Net Income, all as
determined on a consolidated basis for the Issuer and its Restricted
Subsidiaries in conformity with GAAP; provided that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated EBITDA
shall be reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by (B) the quotient of (1)
the number of shares of outstanding Common Stock of such Restricted Subsidiary
not owned on the last day of such period by the Issuer or any of its Restricted
Subsidiaries divided by (2) the total number of shares of outstanding Common
Stock of such Restricted Subsidiary on the last day of such period.
"Consolidated Interest Expense" means, for any period, without
duplication, the aggregate amount of interest in respect of Indebtedness,
including, without limitation:
(i) amortization of original issue discount on any Indebtedness and
the interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting;
(ii) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(iii) the net costs associated with Interest Rate Agreements;
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(iv) Preferred Stock dividends of the Issuer's Restricted Subsidiaries
(other than dividends paid in shares of Preferred Stock that are not
Redeemable Stock) declared and paid or payable;
(v) accrued Redeemable Stock dividends of the Issuer and its
Restricted Subsidiaries, whether or not declared or paid; and
(vi) the interest component of rentals in respect of Capitalized Lease
Obligations paid, accrued or scheduled to be paid or to be accrued by the
Issuer and its Restricted Subsidiaries during such period;
excluding, however, (a) any amount of such interest of any Restricted Subsidiary
if the net income of such Restricted Subsidiary is excluded in the calculation
of Adjusted Consolidated Net Income pursuant to clause (iii) of the definition
thereof (but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (iii) of the definition thereof) and (b) any premiums, fees
and expenses (and any amortization thereof) payable in connection with the
offering of the Notes, the 1998 Senior Notes and the Transaction, all as
determined on a consolidated basis (without taking into account Unrestricted
Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Calculation Date, the
ratio of (i) the aggregate amount of Indebtedness of the Issuer and its
Restricted Subsidiaries on a consolidated basis outstanding on such Calculation
Date to (ii) the aggregate amount of Consolidated EBITDA for the then most
recent four fiscal quarters for which financial statements of the Issuer have
been filed with the Commission or provided to the Trustee pursuant to Section
10.22 hereof (such four fiscal quarter period being the "Four Quarter Period");
provided that, in making the foregoing calculation, (A) pro forma effect shall
be given to any Indebtedness to be Incurred or repaid on the Calculation Date;
(B) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur from the beginning of the Four Quarter Period through
the Calculation Date (the "Reference Period"), as if they had occurred and such
proceeds had been applied on the first day of such Reference Period; and (C) pro
forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset
disposition) that have been made by any Person that has become a Restricted
Subsidiary or has been merged with or into the Issuer or any Restricted
Subsidiary during such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred when such
Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions had occurred on the first day of such Reference Period; provided
that to the extent that clause (B)
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or (C) of this sentence requires that pro forma effect be given to an Asset
Acquisition or Asset Disposition, such pro forma calculation shall be based upon
the four full fiscal quarters immediately preceding the Calculation Date of the
Person, or division or line of business of the Person, that is acquired or
disposed of for which financial information is available.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of the Issuer and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of such
computation and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Redeemable Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the outstanding principal amount of any promissory notes receivable from the
sale of the Capital Stock of the Issuer or any of its Restricted Subsidiaries,
each item to be determined in conformity with GAAP (excluding the effects of
foreign currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Corporate Trust Department, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Holders.
"Credit Facilities" means any senior commercial term loan and/or
revolving credit or working capital facility or any letter of credit facility
entered into principally with commercial banks and/or other financial
institutions typically party to commercial loan agreements.
"Currency Agreement" means any spot or forward foreign exchange
contract, currency swap agreement, currency option or other similar financial
agreement or arrangement entered into by the Issuer or any of its Subsidiaries
designed solely to protect against or manage exposure to fluctuations in
currency exchange rates.
"Custodian" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other Person with like
powers, whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
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"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default. The Issuer is in "Default" during the
continuance of such an event.
"Depository" means The Depository Trust Company and its nominees and
successors.
"Disinterested Director" means, with respect to any matter, a member
of the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such matter.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"Exchange Notes" means the 11 1/2% Senior Notes due 2009, Series B, to
be issued in exchange for the Initial Notes pursuant to the Registration Rights
Agreement.
"Exchange Offer" shall have the meaning specified in the Registration
Rights Agreement.
"fair market value" means the price that would be paid in an
arm's-length transaction between a willing seller under no compulsion to sell
and a willing buyer under no compulsion to buy, as determined in good faith by
the Board of Directors, whose determination shall be conclusive if evidenced by
a Board Resolution; provided that for purposes of clause (viii) of the
definition of "Permitted Indebtedness", (x) the fair market value of any
security registered under the Exchange Act shall be the average of the closing
prices, regular way, of such security for the 20 consecutive trading days
immediately preceding the capital contribution or sale of Capital Stock and (y)
in the event the aggregate fair market value of any other property (other than
cash or cash equivalents) received by the Issuer exceeds $10 million, the fair
market value of such property shall be determined by a nationally recognized
investment banking firm (selected by the Board of Directors of the Issuer) and
set forth in their written opinion which shall be delivered to the Trustee.
"GAAP" means generally accepted accounting principles in the United
States of America in effect on the 1998 Senior Notes Issue Date, including,
without limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of
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the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
"Global Notes" means one or more of the Regulation S Global Notes
and/or the 144A Global Notes.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length and are entered into in
the ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guaranteed Indebtedness" has the meaning given it under Section 10.23
hereof.
"Holder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an Incurrence of Acquired Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness. The terms "Incurrence" and
"Incurred" shall have corresponding meanings.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication):
(i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments,
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(iii) all obligations of such Person in respect of letters of credit,
acceptance facilities or other similar instruments (including reimbursement
obligations with respect thereto),
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, 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,
(v) all Capitalized Lease Obligations of such Person,
(vi) 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 that the amount of such Indebtedness shall be the lesser of (A)
the fair market value of such asset at such date of determination and (B)
the amount of such Indebtedness,
(vii) all Indebtedness of other Persons and all dividends and
distributions of another Person the payment of which, in either case, such
Person has Guaranteed or is responsible or liable for, directly or
indirectly, as obligor, guarantor or otherwise,
(viii) all Redeemable Stock of such Person valued at its maximum fixed
repurchase price plus (to the extent not otherwise included in such
repurchase price) accrued and unpaid dividends payable prior to the Stated
Maturity of the Notes in connection with a mandatory redemption or in
connection with a redemption at the option of the holder thereof unless
such Redeemable Stock has actually been called for redemption but not yet
redeemed, in which case it shall be valued at the redemption price therefor
plus such accrued and unpaid dividends unless the holder thereof can
require redemption or repurchase at any higher price, and
(ix) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
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, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation.
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Notwithstanding anything herein to the contrary:
(A) the amount outstanding at any time of any Indebtedness issued with
original issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at the time of its issuance, as determined in conformity with
GAAP,
(B) money borrowed and set aside at the time of the Incurrence of any
Indebtedness or thereafter in order to refund the payment of the interest
on such Indebtedness shall not be deemed to be "Indebtedness,"
(C) Indebtedness shall not include any liability for federal, state,
local or other taxes,
(D) Indebtedness shall not include any Trade Payable or amounts due
under leases that are not Capitalized Lease Obligations,
(E) Indebtedness shall not include amounts due with respect to any
customer advance payments and customer deposits in the ordinary course of
business with the Issuer or any Restricted Subsidiary, and
(F) Indebtedness shall not include overdrafts.
For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Stock as if such
Redeemable Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Redeemable Stock, such fair
market value shall be determined in good faith by the Board of Directors of the
issuer of such Redeemable Stock.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Issuer, under
this Indenture or under the Notes, to pay principal of, premium, if any, and
interest on the Notes when due and payable, whether at maturity, by
acceleration, call for redemption or repurchase or otherwise, and to pay all
other amounts due or to become due under or in connection with
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this Indenture or the Notes and the performance of all other obligations to the
Trustee (including, but not limited to, payment of all amounts due the Trustee
under Section 6.07 hereof) and the Holders of the Notes under this Indenture and
the Notes, according to the terms hereof and thereof.
"Initial Notes" means the 11 1/2% Senior Notes due 2009, Series A, of
the Issuer.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Chase Securities Inc., Bear, Xxxxxxx & Co. Inc., Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation and Xxxxxxx, Sachs & Co.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest," when used with respect to any Note, means the amount of
all interest accruing on such Note, including all additional interest payable on
the Notes pursuant to the Registration Rights Agreement and all interest
accruing subsequent to the occurrence of any events specified in Sections
5.01(g) and (h) hereof or which would have accrued but for any such event,
whether or not claims for such interest are allowable under applicable law.
"Interest Payment Date" means, when used with respect to any Note, the
Stated Maturity of an installment of interest on such Note, as set forth in such
Note.
"Interest Rate Agreement" means 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, option or future contract or other
similar agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan,
account receivable (other than an account receivable arising in the ordinary
course of business) or other extension of credit (including, without limitation,
by way of Guarantee or similar arrangement) or any 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, bonds, notes, debentures or other similar
instruments issued by, such Person and shall include (i) the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair market
value of the Capital Stock (or any other Investment), held by the Issuer or any
of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a
Restricted Subsidiary at the time it so ceases to be a Restricted Subsidiary,
including, without limitation, by reason of any transaction permitted by clause
(c)
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of Section 10.18 hereof. For purposes of the definition of "Unrestricted
Subsidiary" and Section 10.13 hereof, (i) "Investment" shall include the fair
market value of the assets (net of liabilities (other than liabilities to the
Issuer or any of its Subsidiaries)) of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii)
the fair market value of the assets (net of liabilities (other than liabilities
to the Issuer or any of its Subsidiaries)) of any Unrestricted Subsidiary at the
time that such Unrestricted Subsidiary is designated a Restricted Subsidiary
shall be considered a reduction in outstanding Investments and (iii) any
property transferred to or from any Person shall be valued at its fair market
value at the time of such transfer.
"Issue Date" means the original date of issuance of the Notes.
"Issuer Request" or "Issuer Order" means a written request or order
delivered to the Trustee that is signed in the name of the Issuer by its
Chairman of the Board, Vice-Chairman, Chief Executive Officer, President or Vice
President, and by its Secretary, Assistant Secretary, Treasurer or Assistant
Treasurer.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien (statutory or other) or charge of any kind (including, without limitation,
any conditional sale or other title retention agreement or lease in the nature
thereof or any agreement to give any security interest). The term "Lien" does
not include any lease or grant of rights to use any fiber or other asset under
an arrangement that does not qualify as a conditional sale or other title
retention agreement or lease in the nature thereof or a switch partition.
"Maturity Date" means, with respect to any Note, the date specified in
such Note as the fixed date on which the principal of such Note is due and
payable.
"Merger Agreement" means that certain Agreement and Plan of Merger and
Plan of Exchange dated as of February 16, 1998 among the Issuer, CapRock
Telecommunications Corp., CapRock Fiber Network, Ltd., IWL Communications,
Incorporated and certain other parties thereto, as amended through the 1998
Senior Notes Issue Date and thereafter as amended in accordance with the terms
of the 1998 Senior Notes Indenture.
"Moody's" means Xxxxx'x Investors Service.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the
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extent such obligations are financed or sold with recourse to the Issuer or any
Restricted Subsidiary) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will actually be paid or are payable) as a
result of such Asset Sale without regard to the consolidated results of
operations of the Issuer and its Restricted Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (A) is secured by a Lien on the property
or assets sold or (B) is required to be paid as a result of such sale and (iv)
appropriate amounts to be provided by the Issuer or any Restricted Subsidiary as
a reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
in conformity with GAAP, and (b) with respect to any capital contribution or
issuance or sale of Capital Stock, options, warrants or other rights to acquire
Capital Stock or Indebtedness, the proceeds of such capital contribution or
issuance or sale in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Issuer or any Restricted Subsidiary) and proceeds from
the conversion of other property received when converted to cash or cash
equivalents, net of attorney's fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of taxes
payable as a result thereof.
"1998 Senior Notes Indenture" means the Indenture dated as of July 16,
1998, among the Issuer, CapRock Telecommunications Corp., CapRock Fiber Network,
Ltd. and IWL Communications, Incorporated and Chase Manhattan Trust Company,
National Association, as successor Trustee, providing for the issuance of the
1998 Senior Notes in the aggregate principal amount of $150,000,000, as such
instrument may be amended and supplemented from time to time.
"1998 Senior Notes Issue Date" means the date on which the 1998 Senior
Notes were originally issued under the 1998 Senior Note Indenture.
"1998 Senior Notes" means the Issuer's 12% Senior Notes due 2008
issued pursuant to the 1998 Senior Notes Indenture, as such instrument may be
amended from time to time.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
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"Notes" shall have the meaning specified in the recitals of this
Indenture.
"Offer to Purchase" means an offer by the Issuer to purchase Notes
from the Holders commenced by mailing a notice to the Trustee and each Holder
stating:
(i) the covenant pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata
basis;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed);
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms;
(iv) that, unless the Issuer defaults in the payment of the purchase
price, any Note accepted for payment pursuant to the Offer to Purchase
shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the
Offer to Purchase will be required to surrender the Note, together with the
form entitled "Option of the Holder to Elect Purchase" on the reverse side
of the Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately
preceding the Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral multiples
thereof.
On the Payment Date, the Issuer shall (i) accept for payment on a pro
rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase price of
all Notes or portions thereof
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so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all
Notes or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted for payment by the Issuer. The
Paying Agent shall promptly mail to the Holders of Notes so accepted payment in
an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. The Issuer will publicly announce the results of an
Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the Paying Agent for an Offer to Purchase. The Issuer will comply
with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable,
in the event that the Issuer is required to repurchase Notes pursuant to an
Offer to Purchase.
"Offering Memorandum" means the Offering Memorandum dated May 13, 1999
pursuant to which the Notes were offered.
"Officer" means, with respect to the Issuer, its Chairman of the
Board, Vice Chairman, President, Vice President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer.
"Officers' Certificate" means a certificate delivered to the Trustee
that is signed by the Chairman of the Board, a Vice Chairman, the President or a
Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or
an Assistant Treasurer of the Issuer.
"144A Global Note" means one or more permanent global notes in
registered form representing the aggregate principal amount of Notes sold in
reliance on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Trustee, and who shall be reasonably acceptable to
the Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent
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(other than the Issuer or any Affiliate thereof) in trust or set aside and
segregated in trust by the Issuer or any Affiliate thereof (if the Issuer or
such Affiliate shall act as Paying Agent) for the Holders of such Notes;
provided, however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
reasonably satisfactory to the Trustee has been made;
(c) Notes with respect to which the Issuer has effected defeasance or
covenant defeasance as provided in Article Four, to the extent provided in
Sections 4.02 and 4.03 hereof; and
(d) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof
reasonably satisfactory to it that such Notes are held by a bona fide purchaser
in whose hands the Notes are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. The Issuer shall notify the Trustee, in writing, when
it repurchases or otherwise acquires Notes, of the aggregate principal amount of
such Notes so repurchased or otherwise acquired. Notes so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the reasonable satisfaction of the Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not the Issuer or any other
obligor upon the Notes or any Affiliate of the Issuer or such other obligor. If
the Paying Agent holds, in its capacity as such, on any Maturity Date or on any
optional redemption date money sufficient to pay all accrued interest and
principal with respect to such Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be Outstanding and
interest on them ceases to accrue. Notes may also cease to be Outstanding to the
extent expressly provided in Article Four.
"Payment Date" means the date on which any Note is purchased pursuant
to an Offer to Purchase.
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"Permitted Holders" means Xxxx X. Xxxxxxxx, Xx., Xxxx X. Xxxxxxxx,
Xx., Xxxx Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxxxx X. Xxxxxxxx and any corporation, limited liability company,
partnership, joint venture or other entity controlled by any one or more of
them.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Issuer pursuant to the Notes and this
Indenture;
(ii) Indebtedness owed (A) to the Issuer and evidenced by an
unsubordinated promissory note or (B) to any Restricted Subsidiaries;
provided that such Indebtedness to any Restricted Subsidiary is
subordinated in right of payment from and after such time as the Notes
shall become due and payable (whether at Stated Maturity, by acceleration
or otherwise); provided further any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Issuer or
another Restricted Subsidiary) shall be deemed, in each case, to constitute
an Incurrence of such Indebtedness not permitted by this clause (ii);
(iii) Indebtedness issued in exchange for, or the net proceeds of
which are used to refinance or refund, then outstanding Indebtedness (other
than Indebtedness Incurred under clause (ii), (iv), (vi) or (xii) of this
definition of "Permitted Indebtedness") and any refinancings of such new
Indebtedness in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses); provided
that Indebtedness the proceeds of which are used to refinance or refund the
Notes or Indebtedness that is pari passu in right of payment with, or
subordinated in right of payment to, the Notes shall only be permitted
under this clause (iii) if (A) in case the Notes are refinanced in part or
the Indebtedness to be refinanced is pari passu in right of payment with
the Notes, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is
outstanding, is expressly made pari passu in right of payment with, or
subordinate in right of payment to, the remaining Notes, (B) in case the
Indebtedness to be refinanced is subordinated in right of payment to the
Notes, such new Indebtedness, by its terms or by the terms of any agreement
or instrument pursuant to which such new Indebtedness is issued or remains
outstanding, is expressly made subordinate in right of payment to the Notes
at least to the extent that the Indebtedness to be refinanced is
subordinated to the Notes and (C) such new Indebtedness, determined as of
the date of Incurrence of such new Indebtedness, does not mature prior to
the Stated Maturity of the Indebtedness to be refinanced or refunded, and
the Average Life of such new Indebtedness is at least equal to the
remaining Average Life of the Indebtedness to be refinanced or refunded;
and provided further that in no event may
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Indebtedness of the Issuer be refinanced by means of any Indebtedness of
any Restricted Subsidiary pursuant to this clause (iii);
(iv) Indebtedness (A) to reimburse workers' compensation insurance
companies for claims paid by such companies on behalf of the Issuer or any
Restricted Subsidiary in accordance with the policies issued to the Issuer
and the Restricted Subsidiaries, (B) in respect of performance, surety or
appeal bonds or similar obligations provided in the ordinary course of
business, or (C) under Currency Agreements and Interest Rate Agreements;
provided that such agreements (I) are designed solely to protect the Issuer
or its Subsidiaries against fluctuations in foreign currency exchange rates
or interest rates and (II) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities
and compensation payable thereunder or (D) arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Issuer or any of its
Restricted Subsidiaries pursuant to such agreements, in each case Incurred
in connection with the disposition of any business, assets or Restricted
Subsidiary (other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition), in a principal
amount not to exceed the gross proceeds actually received by the Issuer or
any Restricted Subsidiary in connection with such disposition;
(v) Indebtedness of the Issuer, to the extent the net proceeds thereof
are promptly used to purchase Notes tendered in an Offer to Purchase made
as a result of a Change of Control or Indebtedness of the Issuer or any
Restricted Subsidiary to the extent the net proceeds thereof are promptly
deposited to defease all of the Notes as described in Article Four hereof;
(vi) Guarantees of the Notes and Guarantees of Indebtedness of the
Issuer by any Restricted Subsidiary; provided that the Guarantee of such
Indebtedness is permitted by and made in accordance with Section 10.23
hereof.
(vii) Acquired Indebtedness and any Indebtedness issued in exchange
for, or the net proceeds of which are used to refinance or refund, such
Acquired Indebtedness in an amount not to exceed the amount so refinanced
or refunded (plus premium, accrued interest, and reasonable fees and
expenses) in an aggregate amount not to exceed at any one time outstanding
$25 million;
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(viii) (A) Indebtedness of the Issuer not to exceed, at any one time
outstanding, two times the Net Cash Proceeds received by the Issuer after
the 1998 Senior Notes Issue Date as a capital contribution or from the
issuance and sale of its Capital Stock (other than Redeemable Stock) or
options, warrants or other rights to acquire Capital Stock (other than
Redeemable Stock) to a Person that is not a Subsidiary of the Issuer, to
the extent such Net Cash Proceeds have not been used pursuant to Section
10.13(a)(iii)(2) or Sections 10.13(b)(iii), (iv) or (vi) hereof to make a
Restricted Payment less any Indebtedness Incurred pursuant to clause (B),
(B) Indebtedness Incurred by (x) the Issuer and/or (y) any of the
Restricted Subsidiaries in an aggregate amount not to exceed, at any one
time outstanding, the Net Cash Proceeds received by the Issuer after the
1998 Senior Notes Issue Date as a capital contribution or from the issuance
and sale of its Capital Stock (other than Redeemable Stock) or options,
warrants or other rights to acquire Capital Stock (other than Redeemable
Stock) to a Person that is not a Subsidiary of the Issuer, to the extent
such Net Cash Proceeds have not been used pursuant to Section
10.13(a)(iii)(2) or Sections 10.13(b)(iii), (iv) or (vi) hereof to make a
Restricted Payment; provided that the Incurrence of Indebtedness pursuant
to this clause (B) will only be permitted to the extent that such
Incurrence does not cause the amount of Indebtedness Incurred pursuant to
clause (A) to exceed the amount permitted thereunder, and (C) Indebtedness
of the Issuer not to exceed, at any one time outstanding, 100% of the fair
market value of property (other than cash and cash equivalents) received by
the Issuer after the 1998 Senior Notes Issue Date from a contribution of
capital or the proceeds from the sale of its Capital Stock (other than
Redeemable Stock) or options, warrants or other rights to acquire Capital
Stock (other than Redeemable Stock) to a Person that is not the Issuer or a
Restricted Subsidiary, to the extent such capital contribution or sale of
Capital Stock or options, warrants or rights have not been used pursuant to
Section 10.13(b)(iii), (iv) or (ix) hereof to make a Restricted Payment;
provided that such Indebtedness does not mature prior to the Stated
Maturity of the Notes and has an Average Life longer than the Notes;
(ix) Indebtedness under one or more Credit Facilities or Vendor Credit
Facilities; provided that the aggregate principal amount of any
Indebtedness incurred pursuant to this clause (ix) (including any amounts
refinanced or refunded under this clause (ix)) does not exceed at any time
outstanding the greater of (x) 85% of eligible accounts receivable and 65%
of eligible inventory of the Issuer and its Restricted Subsidiaries as of
the last fiscal quarter for which financial statements are prepared or (y)
$175 million less any amount of such Indebtedness permanently repaid as
provided under Section 10.15 hereof;
(x) Indebtedness existing as of the Issue Date;
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(xi) Capitalized Lease Obligations in an aggregate principal amount
outstanding at any time not to exceed $25 million; and
(xii) Indebtedness of the Issuer (in addition to Indebtedness
permitted under clauses (i) through (xi) above) in the aggregate principal
amount outstanding at any time not to exceed $75 million, less any amount
of such Indebtedness permanently repaid as provided under Section 10.15
hereof.
"Permitted Investment" means any of the following:
(i) an Investment in the Issuer or a Restricted Subsidiary or a Person
which will, upon the making of such Investment, become a Restricted
Subsidiary or be merged or consolidated with or into or transfer or convey
all or substantially all its assets to, the Issuer or a Restricted
Subsidiary; provided that such Person's primary business is related,
ancillary or complementary to the businesses of the Issuer and its
Restricted Subsidiaries on the date of such Investment;
(ii) a Temporary Cash Investment;
(iii) commission, payroll, travel, relocation and similar advances to
cover matters that are expected at the time of such advances ultimately to
be treated as expenses in accordance with GAAP;
(iv) stock, obligations or securities received in satisfaction of
judgments or settlement of disputed accounts receivable that arose in the
ordinary course of business;
(v) Investments in prepaid expenses, negotiable instruments held for
collection, and lease, utility and workers' compensation, performance and
other similar deposits;
(vi) Interest Rate Agreements and Currency Agreements to the extent
permitted under clause (iv) of the definition of "Permitted Indebtedness;"
and
(vii) loans and advances to employees of the Issuer or any Subsidiary
in an aggregate amount not to exceed $1 million at any time outstanding.
"Permitted Liens" means any of the following:
(i) Liens for taxes, fees, assessments, governmental charges or claims
that are not yet due and payable, or, if delinquent, are payable without
penalty or are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently
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conducted and for which a reserve or other appropriate provisions, if any,
as shall be required in conformity with GAAP shall have been made;
(ii) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent, or, if delinquent, are payable without penalty
or are or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or
other appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(iv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance and
return-of money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment
of borrowed money);
(v) easements, rights-of-way, restrictions, municipal and zoning
ordinances, reservations, permits and similar charges, encumbrances, title
defects or other irregularities that do not materially interfere with the
ordinary course of business of the Issuer or any of its Restricted
Subsidiaries;
(vi) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the Incurrence of such Indebtedness
by the Issuer or any Restricted Subsidiary; provided that such Lien does
not extend to any property or assets of the Issuer or any Restricted
Subsidiary other than the asset acquired in connection with the Incurrence
of such Acquired Indebtedness;
(vii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Issuer and its
Restricted Subsidiaries, taken as a whole;
(viii) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Issuer or its
Restricted Subsidiaries relating to such property or assets;
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(ix) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease;
(x) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xi) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or
becomes a part of, any Restricted Subsidiary; provided that such Liens do
not extend to or cover any property or assets of the Issuer or any
Restricted Subsidiary other than the property or assets acquired and any
proceeds thereof;
(xii) Liens in favor of the Issuer or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or order
against the Issuer or any Restricted Subsidiary that does not give rise to
an Event of Default;
(xiv) Liens securing reimbursement obligations with respect to letters
of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xvi) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either within the general parameters
customary in the industry or incurred in the ordinary course of business,
in each case securing Indebtedness under Interest Rate Agreements and
Currency Agreements and forward contracts, options, future contracts,
futures options or similar agreements or arrangements designed solely to
protect the Issuer or any of its Restricted Subsidiaries from fluctuations
in interest rates, currencies or the price of commodities;
(xvii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Issuer or any of its Restricted Subsidiaries in the ordinary course of
business in accordance with the past practices of the Issuer and its
Restricted Subsidiaries;
(xviii) Liens on or sales of receivables, including related intangible
assets and proceeds thereof;
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(xix) Liens securing Indebtedness incurred under clauses (iv)(A),
(iv)(B), (vii), (viii)(B), (ix), (x) or (xii) of the definition of
"Permitted Indebtedness";
(xx) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off, or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution;
(xxi) Liens securing Capitalized Lease Obligations on assets subject
to such Capitalized Leases;
(xxii) Liens of the Issuer or any Restricted Subsidiary securing
Indebtedness in effect at the Issue Date;
(xxiii) Liens granted after the Issue Date on any assets or Capital
Stock of the Issuer or its Restricted Subsidiaries created in favor of the
Holders;
(xxiv) Liens with respect to the assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Issuer or a Wholly Owned
Restricted Subsidiary to secure Indebtedness owing to the Issuer or such
other Restricted Subsidiary;
(xxv) Liens securing Indebtedness that is Incurred to refinance
secured Indebtedness permitted to be Incurred under clause (iii) of the
definition of "Permitted Indebtedness"; provided that such Liens do not
extend to or cover any property or assets of the Issuer or any Restricted
Subsidiary other than the property or assets securing the Indebtedness
being refinanced; or
(xxvi) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (i) through (xxv), provided
that any such extension, renewal or replacement shall be no more restricted
in any material respect than the Lien so extended, renewed or replaced and
shall not extend to any additional property or assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference equity,
whether outstanding on the Issue Date or issued thereafter, including, without
limitation, all series and classes of such preferred or preference stock.
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"Private Exchange Notes" shall have the meaning given to "Private
Exchange Securities" in the Registration Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of the
legend initially set forth in the Notes in the form set forth on Exhibit A-1.
"pro forma" means, with respect to the preparation of financial
statements to show the effect of any particular transaction, the preparation of
such financial statements in accordance with Article 11 of Regulation S-X.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock (other than Redeemable Stock) of the Issuer or a Restricted
Subsidiary pursuant to an effective registration statement filed under the
Securities Act (excluding registration statements on Form S-8).
"Purchase Agreement" means the Purchase Agreement, dated May 13, 1999,
among the Issuer and the Initial Purchasers.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at any time prior to the Stated Maturity
of the Notes or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Notes; provided that any Capital
Stock that would not constitute Redeemable 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 Stated Maturity of the Notes shall not constitute
Redeemable Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable in any material respect
to the holders of such Capital Stock than the provisions contained in Sections
10.10 and 10.15 hereof are to the holders of the Notes and such Capital Stock
specifically provides that such Person will not repurchase or redeem any such
stock pursuant to such provision prior to the Issuer's repurchase of such Notes
as are required to be repurchased pursuant to Sections 10.10 and 10.15 hereof.
"Redemption Date" means, with respect to any Note to be redeemed, the
date fixed by the Issuer for such redemption pursuant to this Indenture and the
Notes.
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"Redemption Price" means, with respect to any Note to be redeemed, the
price fixed for such redemption pursuant to the terms of this Indenture and the
Notes.
"Registrable Securities" shall have the meaning specified in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Issuer and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified in the
Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Regulation S under the Securities Act.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Note" means a Note that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Payment" means
(i) a declaration or payment of any dividend or the making of any
distribution on or with respect to the Issuer's Capital Stock (other than
(x) dividends or distributions payable solely in shares of the Issuer's
Capital Stock (other than Redeemable Stock) or in options, warrants or
other rights to acquire shares of such Capital Stock and (y) dividends or
distributions payable to the Issuer or any Wholly Owned Restricted
Subsidiary),
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(ii) a payment made by the Issuer or any Restricted Subsidiary used to
purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock of (A) of the Issuer or an Unrestricted Subsidiary (including
options, warrants or other rights to acquire such shares of Capital Stock)
held by any Person or (B) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock) held by
any Affiliate of the Issuer (other than a Wholly Owned Restricted
Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more
of any class of Capital Stock of the Issuer (including options, warrants or
other rights to acquire such shares of Capital Stock) (other than (x)
payments payable solely in shares of Capital Stock) (other than Redeemable
Stock) of the Issuer or in options, warrants or other rights to acquire
shares of such Capital Stock and (y) payments payable to the Issuer or any
Wholly-Owned Restricted Subsidiary),
(iii) any voluntary or optional principal payment, or voluntary or
optional redemption, repurchase, defeasance, or other acquisition or
retirement for value, of Indebtedness of the Issuer that is subordinated in
right of payment to the Notes (other than, in each case, the purchase,
repurchase or acquisition of Indebtedness either in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity that in any case is due within one year after the date of such
purchase, repurchase or acquisition), or
(iv) any Investment, other than a Permitted Investment, in any Person.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than
an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Services, a division of McGraw
Hill, Inc..
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, or if at any time after the execution of this Indenture such
Commission is not existing and performing the applicable duties now assigned to
it, then the body or bodies performing such duties at such time.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Special Record Date" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof.
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"Stated Maturity" means (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"Strategic Equity Investments" means the issuance and sale of Capital
Stock (other than Redeemable Stock) to a Person that has an equity market
capitalization, a net asset value or annual revenues of at least $1.0 billion
and owns and operates businesses primarily in a Telecommunications Business;
provided that such Telecommunications Business may be located anywhere in the
world.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" has the meaning given it in Section 10.23
hereof.
"Telecommunications Assets" means, with respect to any Person, assets
(including, without limitation, rights of way, trademarks and licenses) that are
utilized by such Person, directly or indirectly, in the Telecommunications
Business and including any computer systems used in a Telecommunications
Business. Telecommunications Assets shall also include a majority of the Voting
Stock of another Person, if such Voting Stock is acquired by the Issuer or a
Restricted Subsidiary and all or substantially all the assets of such other
Person comprise Telecommunications Assets; and such other Person either is, or
immediately following the relevant transaction shall become, a Restricted
Subsidiary of the Issuer pursuant to this Indenture. The determination of what
constitutes Telecommunications Assets shall be made by the Board of Directors of
the Issuer and evidenced by a Board Resolution delivered to the Trustee.
"Telecommunications Business" means the business of (i) transmitting
or providing services relating to the transmission of voice, video, signals,
data or Internet services; (ii) constructing, creating, developing, owning,
operating, and marketing one or more communications networks, related, ancillary
or complementary network transmission equipment, information systems, software,
and other related, ancillary or complementary assets and services; (iii)
planning, designing, and consulting with respect to the matters described in
clauses (i) and (ii); and (iv) evaluating, participating and pursuing any other
activity or opportunity that is related, ancillary, or complementary to those
identified in clauses (i), (ii) and (iii) above, as determined in good faith by
the Board of Directors of the Issuer.
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"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or any agency
thereof or obligations fully and unconditionally guaranteed by the United
States of America or any agency thereof with a maturity of 365 days or
less,
(ii) time deposit accounts, certificates of deposit and money market
deposits maturing within one year of the date of acquisition thereof issued
by a bank or trust company which 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, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50 million (or the
foreign currency equivalent thereof) and has outstanding debt which 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) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor,
(iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above,
(iv) commercial paper, maturing not more than one year 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, any state thereof or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or
higher) according to S&P, and
(v) securities with maturities of six months or less from the date of
acquisition issued or fully and unconditionally 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 Xxxxx'x.
"Trade Payables" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services.
"Transaction" means the transactions contemplated by the Merger
Agreement, which were consummated on August 26, 1998.
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend in the form set forth in Exhibit
A-1, including, without limitation, the Exchange Notes.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors of the Issuer, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Issuer may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as (i) neither the Issuer nor any other
Subsidiary is directly or indirectly liable for any Indebtedness of such
Subsidiary, (ii) no default with respect to any Indebtedness of such Subsidiary
would permit (upon notice, lapse of time or otherwise) any holder of any other
Indebtedness of the Issuer or any Restricted Subsidiary to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity, (iii) any Investment in such Subsidiary
made as a result of designating such Subsidiary an Unrestricted Subsidiary will
not violate the provisions of Section 10.13 hereof, (iv) neither the Issuer nor
any Restricted Subsidiary has a contract, agreement, arrangement, understanding
or obligation of any kind, whether written or oral, with such Subsidiary on
terms more favorable to such Subsidiary than those that might be obtained at the
time from persons who are not Affiliates of the Issuer, and (v) neither the
Issuer nor any other Subsidiary has any obligation (1) to subscribe for
additional shares of Capital Stock or other equity interests in such Subsidiary,
or (2) to maintain or preserve such Subsidiary's financial condition or to cause
such Subsidiary to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Issuer shall be evidenced to the
Trustee by filing a Board Resolution with the Trustee giving effect to such
designation. The Board of Directors of the Issuer may designate any Unrestricted
Subsidiary as a Restricted Subsidiary if, immediately after giving effect to
such designation, there would be no Default or Event of Default under this
Indenture and the Issuer could incur $1.00 of additional Indebtedness under
clause (i) of Section 10.11(a) hereof.
"U.S. Government Securities" means securities that are direct
non-callable obligations of the United States of America or securities the
timely payment of whose principal and interest is unconditionally guaranteed by
the full faith and credit of the United States of America.
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"Vendor Credit Facility" means any agreement entered into with one or
more vendors, suppliers or lessors of telecommunications equipment or assets
(including any agreement entered into with any such vendor, supplier or lessor
or any financial institution acting on behalf of any such vendor, supplier or
lessor) in order to finance the acquisition or construction of
telecommunications equipment or assets, as such agreement may be amended,
modified, supplemented, refunded, refinanced, restructured, renewed or replaced
from time to time; provided that (i) any equipment or other assets acquired or
leased under or pursuant to such Vendor Credit Facility are received by the
Issuer or a Restricted Subsidiary and (ii) all obligations with respect to or
under such Vendor Credit Facility or any amendment, modification, supplement,
refunding, refinancing, restructuring, renewal or replacement thereof are owed,
whether directly or indirectly, as the case may be, to a Person who is not an
Affiliate of the Issuer or any of its Subsidiaries and no such Affiliate shall
act as a facilitator or conduit or in a similar capacity with respect thereto.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by foreign nationals or
other shares issued to Persons as mandated by applicable law) by such Person or
one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Act" 1.05
"Agent Member" 3.16
"Defaulted Interest" 3.07
"Event of Default" 5.01
"Excess Proceeds" 10.15
"Note Register" 3.05
"Paying Agent" or "Agent" 3.02
"Physical Notes" 3.03
"Registrar" 3.02
"Restricted Period" 3.17
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Section 1.03. Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$" or "dollars" refer to the lawful currency of
the United States of America; and
(f) the words "include," "included" and "including" as used herein are
deemed in each case to be followed by the phrase "without limitation."
Section 1.04. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other persons as to other matters, and any such person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer stating that the information with respect to
such factual matters is in the possession of the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
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Where any person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated, with
proper identification of each matter covered therein, and form one instrument.
Section 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution (as provided below in
subsection (b) of this Section 1.05) of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future Holder
of the same Note or the Holder of every Note issued upon the transfer thereof or
in exchange therefor or in lieu thereof to the same extent as the original
Holder, in respect of anything done, suffered or omitted to be done by the
Trustee, any Paying Agent or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 1.06. Notices, etc., to the Trustee and the Issuer.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer shall be sufficient for
every purpose hereunder if made, given, furnished or filed, in writing, to or
with the Trustee at One
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Xxxxxxx Xxxxx, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Corporate Trust Department, or at any other address previously
furnished in writing to the Holders and the Issuer by the Trustee; or
(b) the Issuer by the Trustee or by any Holder shall be sufficient for
every purpose (except as otherwise expressly provided herein) hereunder if in
writing and mailed, first-class postage prepaid, to the Issuer addressed to the
Issuer at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxx
X. Xxxxxxxx, Xx., or at any other address previously furnished in writing to the
Trustee by the Issuer.
Section 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise expressly provided herein)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
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If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the foregoing
paragraph shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall
bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Notes issued
pursuant hereto shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Notes issued pursuant hereto,
express or implied, shall give to any person (other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Issuer
shall not have any liability for any obligations of the Issuer under the Notes
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.
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Section 1.15. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. Exhibits.
All exhibits attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts and by
telecopier, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 1.18. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE 2
NOTE FORMS
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication with respect
thereto shall be in substantially the forms set forth, or referenced, in Exhibit
A-1 and Exhibit A-2, respectively, annexed hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with the rules of the Depository,
any clearing agency or any securities exchange or as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution thereof.
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The definitive Notes shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its issuance and shall show the
date of its authentication. The terms and provisions contained in the Notes
shall constitute, and are expressly made, a part of this Indenture.
ARTICLE 3
THE NOTES
Section 3.01. Title and Terms.
The aggregate principal amount of the Notes which may be authenticated
and delivered under this Indenture is limited to $210,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 3.03, 3.04, 3.05, 3.06,
9.06, 10.10 or 10.15 hereof.
The Notes will mature on May 1, 2009. The Notes shall bear interest
payable in cash at a rate of 11 1/2% per annum, semi-annually in arrears from
the most recent Interest Payment Date to which interest has been paid or, if no
interest has been paid, from May 18, 1999. Interest on any overdue principal,
interest (to the extent lawful) or premium, if any, shall be payable on demand.
Section 3.02. Registrar and Paying Agent.
The Issuer shall maintain an office or agency (which shall be located
in the Borough of Manhattan in The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan in The City of New York, State of New York) where Notes may be
presented for payment (the "Paying Agent" or "Agent") and an office or agency
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes 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" or "Agent"
includes any additional paying agent. The Issuer may act as its own Paying
Agent, except for the purposes of payments on account of principal on the Notes
pursuant to Sections 10.10 and 10.15 hereof.
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The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the Trust Indenture Act. 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, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 6.07 hereof.
The Issuer initially appoints the Trustee as the Registrar and Paying
Agent and agent for service of notices and demands in connection with the Notes.
Section 3.03. Execution and Authentication.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto. The Exchange Notes and
the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit A-2 hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuer shall approve the form of the Notes and any notation, legend or
endorsement thereon. Each Note shall be dated the date of issuance and shall
show the date of its authentication.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A-1 and A-2 shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes offered and
sold in reliance on Regulation S shall be issued initially in the form of one or
more Global Notes, substantially in the form set forth in Exhibit A-1, deposited
with the Trustee, as custodian for the Depository, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Exhibit B. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 3.17 hereof may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A-1 (the
"Physical Notes").
Two Officers shall sign, or one Officer shall sign, and one Officer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Issuer by manual or
facsimile signature.
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If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall nevertheless be valid.
The Trustee shall authenticate (i) Initial Notes for aggregate
principal amount of not to exceed $210,000,000 at anytime, (ii) Private Exchange
Notes from time to time only in exchange for a like principal amount of Initial
Notes and (iii) Unrestricted Notes from time to time only in exchange for (A) a
like principal amount of Initial Notes or (B) a like principal amount of Private
Exchange Notes, in each case upon a written order of the Issuer in the form of
an Officers' Certificate of the Issuer. Each such written order shall specify
the amount of Notes to be authenticated and the date on which the Notes are to
be authenticated, whether the Notes are to be Initial Notes, Private Exchange
Notes or Unrestricted Notes and whether (subject to this Section 3.03) the Notes
are to be issued as Physical Notes or Global Notes and such other information as
the Trustee may reasonably request. The aggregate principal amount of the Notes
outstanding at any time may not exceed $210,000,000, except as provided in
Section 3.06 hereof.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Issuer and Affiliates of the Issuer.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.04. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Issuer
may execute and upon an Issuer Order the Trustee shall authenticate and deliver
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes, in any authorized denominations, but may have variations that
the Issuer reasonably considers appropriate for temporary Notes as conclusively
evidenced by the Issuer's execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause definitive Notes
to be prepared without unreasonable delay but in no event later than the date
that the Exchange Offer is consummated. After the preparation of definitive
Notes, the temporary Notes shall be
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exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer designated for such purpose pursuant to Section
10.02 hereof, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Notes, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of like tenor and of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
Section 3.05. Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 hereof being sometimes
referred to herein as the "Note Register") in which, subject to such reasonable
regulations as the Registrar may prescribe, the Issuer shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby initially appointed Registrar for the purpose of registering Notes and
transfers of Notes as herein provided.
When Notes are presented to the Registrar or a co-Registrar with a
request from the Holder of such Notes to register the transfer or exchange for
an equal principal amount of Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested;
provided, however, that every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer or exchange in form satisfactory to the Issuer and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. Whenever any Notes are so presented for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Notes which the
Holder making the exchange is entitled to receive. No service charge shall be
made to the Holder for any registration of transfer or exchange. The Issuer may
require from the Holder payment of a sum sufficient to cover any transfer taxes
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to Section
10.10, 10.15 or 9.06 hereof (in which events the Issuer will be responsible for
the payment of all such taxes which arise solely as a result of the transfer or
exchange and do not depend on the tax status of the Holder). The Trustee shall
not be required to exchange or register the transfer of any Note for a period of
15 days immediately preceding the first mailing of notice of redemption of Notes
to be redeemed or of any Note selected, called or being called for redemption
except, in the case of any Note where public notice has been given that such
Note is to be redeemed in part, the portion thereof not to be redeemed.
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All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book-entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a
book-entry system.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note of any series claims that the Note has been lost, destroyed or wrongfully
taken, the Issuer shall execute and upon an Issuer Order, the Trustee shall
authenticate and deliver a replacement Note of like tenor and principal amount,
bearing a number not contemporaneously outstanding if the Holder of such Note
furnishes to the Issuer and to the Trustee evidence reasonably acceptable to
them of the ownership and the destruction, loss or theft of such Note and an
indemnity bond shall be posted by such Holder, sufficient in the judgment of the
Issuer or the Trustee, as the case may be, to protect the Issuer, the Trustee or
any Agent from any loss that any of them may suffer if such Note is replaced.
The Issuer may charge such Holder for the Issuer's expenses in replacing such
Note (including (i) expenses of the Trustee charged to the Issuer and (ii) any
tax or other governmental charge that may be imposed) and the Trustee may charge
the Issuer for the Trustee's expenses in replacing such Note.
Every replacement Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note (or one or more
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predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Issuer, at its election in each case, as provided in subsection (a) or
(b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to
the persons in whose names the Notes (or their respective predecessor Notes) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Issuer shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Issuer shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such Defaulted Interest
as provided in this subsection (a). Not later than the second Business Day after
the Trustee receives the notice from the Issuer referred to in the preceding
sentence, the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Issuer in writing of such Special Record Date. In the
name and at the expense of the Issuer, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at its address as it
appears in the Note Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the persons in whose names the Notes (or their respective predecessor
Notes) are registered on such Special Record Date and shall no longer be payable
pursuant to the following subsection (b).
(b) The Issuer may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after written notice given by the Issuer to the Trustee of
the proposed payment pursuant to this subsection (b), such payment shall be
deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.08. Persons Deemed Owners.
Prior to and at the time of due presentment for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the person in whose name any Note is registered in the Note Register as
the owner of such Note for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07 hereof) interest on such Note and
for all other purposes whatsoever, whether or not such Note shall be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
Section 3.09. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Issuer may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Trustee. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer or exchange, redemption or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. No Notes shall be authenticated
in lieu of or in exchange for any Notes canceled as provided in this Section
3.09 hereof, except as expressly permitted by this Indenture. All canceled Notes
held by the Trustee shall be destroyed and certification of their destruction
delivered to the Issuer unless by an Issuer Order the Issuer shall timely direct
that the canceled Notes be returned to it. The Trustee shall provide the Issuer
a list of all Notes that have been canceled from time to time as requested by
the Issuer.
Section 3.10. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or Stated Maturity of any Note
shall not be a Business Day,
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then (notwithstanding any other provision of this Indenture or of the Notes)
payment of principal, premium, if any, or interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or at the Stated Maturity, as
the case may be. In such event, no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date, Redemption
Date, date established for the payment of Defaulted Interest or Stated Maturity,
as the case may be, to the next succeeding Business Day and, with respect to any
Interest Payment Date, interest for the period from and after such Interest
Payment Date shall accrue with respect to the next succeeding Interest Payment
Date.
Section 3.12. CUSIP and CINS Numbers.
The Issuer in issuing the Notes may use "CUSIP" and "CINS"
numbers (if then generally in use), and if so, the Trustee shall use the CUSIP
or CINS numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP or CINS
number, as the case may be, printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Issuer shall promptly notify the Trustee in writing of any change in
the CUSIP or CINS number of any type of Notes.
Section 3.13. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, or interest on the Notes, and shall notify the Trustee of
any default by the Issuer in making any such payment. Money held in trust by the
Paying Agent need not be segregated except as required by law and in no event
shall the Paying Agent be liable for any interest on any money received by it
hereunder. The Issuer at any time may require the Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed and the Trustee
may at any time during the continuance of any Event of Default, upon an Issuer
Order to the Paying Agent, require such Paying Agent to pay forthwith all money
so held by it to the Trustee and to account for any funds disbursed. Upon making
such payment, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Section 3.14. Treasury Notes.
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Issuer or
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an Affiliate of the Issuer shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver, consent or notice,
only Notes which a Responsible Officer of the Trustee actually knows are so
owned shall be so considered. The Issuer shall notify the Trustee, in writing,
when it or any of its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or otherwise acquired.
Section 3.15. Deposits of Monies.
Prior to 1:00 p.m. New York City time on each Interest Payment Date,
maturity date, the Payment Date made with respect to an Offer to Purchase made
pursuant to Sections 10.10 or 10.15 hereof, the Issuer shall have deposited with
the Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, maturity date and Payment
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, maturity date and
Payment Date, as the case may be.
Section 3.16. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of the Global Note
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 Depository or nominee of such Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Sections 3.03 and 3.17 hereof. In addition,
Physical Notes shall be transferred to all beneficial owners, in exchange for
their beneficial interests in Global Notes, if (i) the Depository notifies the
Issuer that it is unwilling or unable to continue as Depository for any Global
Note, or that it will cease to be a "Clearing
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Agency" under the Exchange Act, and in either case a successor Depository is not
appointed by the Issuer within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a written
request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuer
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and principal amount of authorized denominations.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuer shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Notes, an equal aggregate principal amount of Physical Notes of like
tenor of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to subparagraph (b), (c) or
(d) of this Section 3.16 shall, except as otherwise provided by Section 3.17
hereof, bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 3.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following additional provisions shall apply with respect to the registration of
any proposed transfer of an Initial Note to any Institutional Accredited
Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither the Issuer nor any Affiliate of the Issuer
has held any beneficial interest in such Note, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act without
registering such Initial Notes thereunder or (y) the proposed transferee
has delivered to the Registrar a certificate
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substantially in the form of Exhibit C hereto and any legal opinions and
certifications required thereby; and
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of (x)
written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any required
legal opinions and certifications, the Registrar shall register the
transfer and reflect on its books and records the date and a decrease in
the principal amount of the Global Note from which such interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and the Issuer shall execute and upon an Issuer Order, the
Trustee shall authenticate Physical Notes in a principal amount equal to
the principal amount of the Global Note to be transferred.
(b) Transfers to Non-U.S. Persons. The following additional provisions
shall apply with respect to the registration of any proposed transfer of an
Initial Note to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither the Issuer nor any Affiliate of the Issuer
has held any beneficial interest in such Note, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act without
registering such Initial Notes thereunder or (y) the proposed transferor
has delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in a Regulation S Global Note upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the Registrar
shall register the transfer and reflect on its books and records the date
and an increase in the principal amount of the Regulation S Global Note in
an amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of (x)
written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate
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certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the Registrar
shall register the transfer and reflect on its books and records the date
and (A) a decrease in the principal amount of the Global Note from which
such interests are to be transferred in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the principal
amount of the Regulation S Global Note in an amount equal to the principal
amount of the Global Note to be transferred; and
(iv) until the 41st day after the Issue Date (the "Restricted
Period"), an owner of a beneficial interest in the Regulation S Global Note
may not transfer such interest to a transferee that is a U.S. person or for
the account or benefit of a U.S. person within the meaning of Rule 902(k)
of the Securities Act. During the Restricted Period, all beneficial
interests in the Regulation S Global Note shall be transferred only through
Cedel or Euroclear, either directly if the transferor and transferee are
participants in such systems, or indirectly through organizations that are
participants.
(c) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Note to a QIB
(excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither the Issuer nor any Affiliate of the Issuer
has held any beneficial interest in such Note, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act without
registering such Initial Note thereunder or (y) such transfer is being made
by a proposed transferor who has checked the box provided for on the form
of Note stating, or has otherwise advised the Issuer and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided for on
the form of Note stating, or has otherwise advised the Issuer and the
Registrar in writing, that it is purchasing the Note for its own account or
an account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor and the Issuer is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest
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in the 144A Global Note, upon receipt by the Registrar of written
instructions given in accordance with the Depository's and the Registrar's
procedures, the Registrar shall register the transfer and reflect on its
book and records the date and an increase in the principal amount of the
144A Global Note in an amount equal to the principal amount of Physical
Notes to be transferred, and the Trustee shall cancel the Physical Note so
transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the 144A Global
Note in an amount equal to the principal amount of the Global Note to be
transferred.
(d) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the circumstances contemplated by paragraphs
(a)(i)(x) or (b)(i)(x) of this Section 3.17 exist, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
(e) Other Transfers. If a Holder proposes to transfer a Note
constituting a Restricted Note pursuant to any exemption from the registration
requirements of the Securities Act other than as provided for by Section 3.17(a)
or (b) hereof, the Registrar shall only register such transfer or exchange if
such transferor delivers an Opinion of Counsel satisfactory to the Issuer and
the Registrar that such transfer is in compliance with the Securities Act and
the terms of this Indenture; provided, however, that the Issuer may, based upon
the opinion of its counsel, instruct the Registrar by an Issuer Order not to
register such transfer in any case where the proposed transferee is not a QIB, a
Non-U.S. Person or an Institutional Accredited Investor.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
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The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.16 hereof or this Section
3.17. The Issuer shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Registrar.
ARTICLE 4
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Termination of Issuer's Obligations.
Except as otherwise provided in this Section 4.01, the Issuer may
terminate its obligations under the Notes and this Indenture if:
(a) all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes that have been replaced or Notes that are
paid pursuant to Section 10.01 or Notes for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Issuer, as provided in Section 4.05) have been delivered to the Trustee for
cancellation and the Issuer has paid all sums payable by it hereunder other
than those that could become payable under Sections 4.06 or 6.07; or
(b) (i) the Notes mature within one year or all of them are to be
called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Issuer irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form and
substance reasonably satisfactory to the Trustee, as trust funds solely for
the benefit of the Holders for that purpose, money or U.S. Government
Securities sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment of any
interest thereon, to pay principal, premium, if, any, and interest on the
Notes to maturity or redemption, as the case may be, and to pay all other
sums payable by it hereunder other than those that could become payable
under Sections 4.06 or 6.07, (iii) no Default or Event of Default with
respect to the Notes shall have occurred and be continuing on the date of
such deposit, (iv) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer or any of its Subsidiaries is a party or by
which the Issuer or any of its Subsidiaries is bound and (v) the Issuer has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions
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precedent relating to the satisfaction and discharge of this Indenture set
forth herein have been complied with.
With respect to the foregoing clause (a), the Issuer's obligations
under Section 6.07 shall survive. With respect to the foregoing clause (b), the
Issuer's obligations under Sections 3.02, 3.03, 3.05, 3.06, 3.07, 3.13, 4.04,
4.05, 4.06, 6.10, 10.01 and 10.02 hereof shall survive until the Notes are no
longer Outstanding. Thereafter, only the provisions of Sections 4.05, 4.06 and
6.07 hereof shall survive. After any such irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Issuer's obligations
under the Notes and this Indenture except for those surviving obligations
specified above.
4.02. Defeasance and Discharge of Indenture.
The Issuer will be deemed to have paid and will be discharged from any
and all obligations in respect of the Notes on the 123rd day after the date of
the deposit referred to in clause (a) of this Section 4.02, and the provisions
of this Indenture will no longer be in effect with respect to the Notes, and the
Trustee, except as to (i) rights of registration of transfer and exchange, (ii)
substitution of apparently mutilated, defaced, destroyed, lost or stolen Notes,
(iii) rights of Holders to receive payments of principal thereof and interest
thereon, (iv) the Issuer's obligations under Section 10.02, (v) the rights,
obligations and immunities of the Trustee hereunder and (vi) the rights of the
Holders as beneficiaries of this Indenture with respect to the property so
deposited with the Trustee payable to all or any of them; provided that the
following conditions shall have been satisfied:
(a) with reference to this Section 4.02, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09) and conveyed
all right, title and interest for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory
to the Trustee as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the principal of,
premium, if any, and interest, if any, on the Notes, and dedicated solely
to, the benefit of the Holders, in and to (i) money in an amount, (ii) U.S.
Government Securities that, through the payment of interest, premium, if
any, and principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment referred
to in this clause (a), money in an amount, or (iii) a combination thereof
in an amount, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and
local taxes or other charges and assessments in respect thereof payable by
the Trustee, the principal of, premium, if any, and accrued interest an the
Outstanding Notes at the Stated
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Maturity of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Securities to the payment of such principal, premium,
if any, and interest with respect to the Notes;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer or any of its Subsidiaries is a party or by
which the Issuer or any of its Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day
after such date of deposit;
(d) the Issuer shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Issuer's exercise of its
option under this Section 4.02 and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
accompanied by a ruling to that effect published by the Internal Revenue
Service, unless there has been a change in the applicable federal income
tax law since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and (y) after the passage of 123
days following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for purposes of
the Bankruptcy Law, after one year following the deposit), the trust funds
will not be subject to the effect of Section 547 of the Bankruptcy Law or
Section 15 of the New York Debtor and Creditor Law in a case commenced by
or against the Issuer under either such statute, and either (i) the trust
funds will no longer remain the property of the Issuer (and therefore will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors, rights generally) or
(ii) if a court were to rule under any such law in any case or proceeding
that the trust funds remained property of the Issuer, (A) assuming such
trust funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold, for
the benefit of the Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise except for the
effect of Section 552(b) of the Bankruptcy Law on interest on the trust
funds accruing after the commencement of a case under such statute and (B)
the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such case or
proceeding;
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(e) if the Notes are then listed on a national securities exchange,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause the Notes
to be delisted; and
(f) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 4.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (d)(ii)(y) of this Section 4.02 none of the
Issuer's obligations under this Indenture shall be discharged. Subsequent to the
end of such 123-day (or one year) period with respect to this Section 4.02, the
Issuer's obligations under Sections 3.02, 3.03, 3.05, 3.06, 3.07, 3.13, 3.16,
3.17, 4.04, 4.05, 4.06, 6.07, 6.10, 10.01 and 10.02 hereof shall survive until
the Notes are no longer Outstanding. Thereafter, only the Issuer's obligations
under Sections 4.05, 4.06 and 6.07 hereof shall survive. If and when a ruling
from the Internal Revenue Service or an Opinion of Counsel referred to in clause
(d)(i) of this Section 4.02 is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Issuer's obligations under
Section 10.01, the Issuer's obligations under such Section 10.01 shall cease
upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 4.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Issuer's obligations under the Notes
and this Indenture except for those surviving obligations in the immediately
preceding paragraph.
Section 4.03. Defeasance of Certain Obligations.
The Issuer may omit to comply with (i) any term, provision or
condition set forth in clauses (c) and (d) of Section 8.01 and Sections 10.10
through 10.11 and Sections 10.13 through 10.23, (ii) clause (d) of Section 5.01
with respect to defaults or breaches of Sections 10.10 through 10.11 and
Sections 10.13 through 10.23 and (iii) clauses (c) and (d) of Section 8.01, and
clauses (e) and (f) of Section 5.01 shall be deemed not to be Events of Default,
in each case with respect to the outstanding Notes if:
(a) with reference to this Section 4.03, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.09) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and
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dedicated solely to, the benefit of the Holders, in and to (i) money in an
amount, (ii) U.S. Government Securities that, through the payment of interest
and principal in respect thereof in accordance with their terms, will provide,
not later than one day before the due date of any payment referred to in this
clause (a), money in an amount or (iii) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the principal
of, premium, if any, and interest on the Notes Outstanding at the Stated
Maturity of such principal or interest; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Securities to the payment of such principal, premium, if any, and
interest with respect to the Notes;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Issuer or any of its Subsidiaries is a party or by which the Issuer
or any of its Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or during the period ending on the 123rd day after such
date of deposit;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (ii) the Trustee, for the benefit of the
Holders, has a valid first priority security interest in the trust funds, (iii)
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain covenants and
Events of Default and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (iv) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the account
of any Holder who may be deemed to be an "insider" for purposes of the
Bankruptcy Law, after one year following the deposit), the trust funds will not
be subject to the effect of Section 547 of the Bankruptcy Law or Section 15 of
the New York Debtor and Creditor Law in a case commenced by or against the
Issuer under either such statute, and either (A) the trust funds will no longer
remain the property of the Issuer (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors, rights generally) or (B) if a court were to rule under any
such law in any case or proceeding that the trust funds remained property of the
Issuer, (x) assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the Trustee
will hold, for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or otherwise
(except for the effect of Section 552(b) of the
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Bankruptcy Law on interest on the trust funds accruing after the commencement of
a case under such statute) and (y) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if such trust funds
are used in such case or proceeding;
(e) if the Notes are then listed on a national securities exchange,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause the Notes to
be delisted; and
(f) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 4.03
have been complied with.
Section 4.04. Application of Trust Money. Subject to Section 4.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Securities
deposited with it pursuant to Section 4.01, 4.02 or 4.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Securities in accordance with the Notes and this Indenture to the payment of
principal of, premium, if any, and interest on the Notes; but such money need
not be segregated from other funds except to the extent required by law.
Section 4.05. Repayment to Issuer. Subject to Sections 4.01, 4.02,
4.03 and 6.07, the Trustee and the Paying Agent shall promptly pay to the Issuer
upon request set forth in an Officers' Certificate any excess money held by them
at any time and thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the Issuer upon
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years. After payment to the Issuer,
Holders entitled to such money must look to the Issuer for payment as general
creditors, unless an applicable law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
Section 4.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Securities in accordance with Section
4.01, 4.02 or 4.03, as the case may be, 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 Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 4.01, 4.02 or 4.03, as the
case my be, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Securities in accordance with Section 4.01,
4.02 or 4.03, as the case may be; provided that, if the Issuer has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of
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such Notes to receive such payment from the money or U.S. Government Securities
held by the Trustee or Paying Agent.
ARTICLE 5
REMEDIES
Section 5.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of the principal of, or premium, if any, on
any Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise; or
(b) default in the payment of interest on any Note when the same
becomes due and payable, which default continues for a period of 30 days; or
(c) default in the performance or breach of the provisions of Article
Eight or the failure to make or consummate an Offer to Purchase in accordance
with Section 10.10 or Section 10.15; or
(d) defaults in the performance or breach of any covenant or agreement
of the Issuer in this Indenture or under the Notes (other than defaults
specified in clause (a), (b) or (c) above), which default or breach continues
(i) for a period of 30 consecutive days or (ii) in the event such default or
breach cannot be cured in such 30-day period and the Issuer is diligently and in
good faith attempting to cure such default or breach, for a period of 60
consecutive days in the case of both clauses (i) and (ii), after written notice
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then Outstanding; or
(e) there occurs with respect to any issue or issues of Indebtedness
of the Issuer or any Restricted Subsidiary having an outstanding principal
amount of $7.5 million or more in the aggregate for such issues of all such
Persons, whether such Indebtedness now exists or shall hereafter be created (i)
an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has not been
rescinded or annulled within 30 days of
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such acceleration and/or (ii) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment default; or
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $7.5 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Issuer or any Restricted Subsidiary and shall not be paid or discharged, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged against all such Persons to
exceed $7.5 million during which a stay or enforcement of such final judgement
or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Issuer or any Restricted Subsidiary in an
involuntary case under any applicable Bankruptcy Law, (ii) appointment of a
Custodian of the Issuer or any Restricted Subsidiary or for all or substantially
all of the property and assets of the Issuer or any Restricted Subsidiary or (C)
the winding up or liquidation of the affairs of the Issuer or any Restricted
Subsidiary and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(h) the Issuer or any Restricted Subsidiary (i) commences a voluntary
case under any applicable Bankruptcy Law, or consents to the entry of an order
for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the
appointment of or taking possession by a Custodian of the Issuer or any
Restricted Subsidiary or for all or substantially all of the property and assets
of the Issuer or any Restricted Subsidiary or (iii) effects any general
assignment for the benefit of creditors.
Section 5.02. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 5.01 hereof with respect to the Issuer) occurs and
is continuing, then the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Notes may, by written notice to the Issuer
(and to the Trustee, if such notice is given by the Holders) may, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Notes shall, declare the principal of,
premium, if any, and accrued interest on all Outstanding Notes to be immediately
due and payable and upon any such declaration such amounts shall become
immediately due and payable. If an Event of Default specified in clause (g) or
(h) of Section 5.01 hereof with respect to the Issuer occurs and is continuing,
then the principal
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of, premium, if any, and accrued interest on all Outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) of Section 5.01
hereof has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the Issuer
or the relevant Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto.
After an acceleration, the Holders of at least a majority in aggregate
principal amount of the Outstanding Notes may, by written notice to the Issuer
and the Trustee, waive all past defaults and rescind and annul such acceleration
and its consequences if all existing Events of Default, other than nonpayment of
the principal of and accrued and unpaid interest on, the Notes that has become
due solely as a result of such acceleration, have been cured or waived and if
the rescission of acceleration would not conflict with any judgment or decree of
a court of competent jurisdiction.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuer covenants that if an Event of Default specified in Section
5.01(a), 5.01(b) or 5.01(c) (to the extent relating to a payment required by
Section 10.10 or 10.15) shall have occurred and be continuing, the Issuer will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of Notes tendered for payment pursuant to such provisions of this Indenture, the
whole amount then due and payable on Notes tendered for payment pursuant to such
provisions of this Indenture for principal, premium, if any, and interest, with
interest upon the overdue principal, premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate then borne by the Notes; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may, but is not
obligated under this paragraph to, institute a judicial proceeding for the
collection of the sums so due and unpaid and may, but is not obligated under
this paragraph to, prosecute such proceeding to judgment or final decree, and
may, but is not obligated under this paragraph to, enforce the same against the
Issuer or any other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer or any other obligor upon the Notes, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee may in
its discretion, but is not obligated under this paragraph to, (i) proceed to
protect and enforce its rights and the rights of the Holders under this
Indenture by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted herein, or (ii) proceed to protect
and enforce any other proper remedy. No recovery of any such judgment upon any
property of the Issuer shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuer or any other obligor upon the Notes
or the property of the Issuer or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Issuer for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, fees, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, in any such judicial proceeding, is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee as administrative expenses associated with any such proceeding, and in
the event that the Trustee shall consent to the making of such payments directly
to Holders, any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all
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distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, fees, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Notes in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
(a) first, to the Trustee for amounts due under Section 6.07;
(b) second, to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for interest;
(c) third, to Holders for principal and premium, if any, owing under
the Notes, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on the Notes for principal and
premium, if any; and
(d) fourth, the balance, if any, to the Issuer.
The Trustee, upon prior written notice to the Issuer, may fix a record
date and payment date for any payment to Holders pursuant to this Section 5.06.
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Section 5.07. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Notes shall have made written request to the Trustee to pursue
the remedy;
(c) Holders described in (b) above have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee does not comply with the request within 60 days after
its receipt of the request and offer of indemnity; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Note to affect, disturb or prejudice the rights of any
other Holder, or to obtain or to seek to obtain priority or preference over any
other Holder or to enforce any right under this Indenture or any Note, except in
the manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.
Section 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
cash payment of the principal of, premium, if any, and (subject to Section 3.07
hereof) interest on such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on the respective Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or any Note and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Issuer, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12. Control by Majority.
The Holders of at least a majority in aggregate principal amount of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or any Note or expose the Trustee to personal liability or
be determined by the Trustee in good faith as unduly prejudicial to the rights
of any Holder of Notes not joining in the giving of such direction; and
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(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past Default hereunder and its consequences, except a Default
(a) in the payment of the principal of, or interest on any Outstanding
Note or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected thereby.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Notes, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on any Note on or
after the respective Stated Maturities expressed in such Note (or, in the case
of redemption, on or after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of,
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any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Issuer from
paying all or any portion of the principal of, premium, if any, or interest on
the Notes contemplated herein or in the Notes or which may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.16. Unconditional Right of Holders To Receive Payment.
Notwithstanding any other provision in this Indenture and any other
provision of any Note, the right of any Holder of any Note to receive payment of
the principal of, premium, if any, and interest on such Note on or after the
respective Stated Maturities (or the respective Redemption Dates, in the case of
redemption) expressed in such Note, or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
ARTICLE 6
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) 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; but in
the case of any such certificates or opinions which by provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) During the existence of an Event of Default, the Trustee is
required to exercise such rights and powers vested in it under this Indenture
using the same degree of care and
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skill in its exercise thereof as a prudent person would exercise under the
circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
Section 6.02. Notice of Defaults.
Within 45 days after the occurrence of any Default actually known to a
Responsible Officer of the Trustee, the Trustee shall transmit by mail to all
Holders in the manner and to the extent provided in TIA Section 313(c), as their
names and addresses appear in the Note Register, notice of such Default
hereunder unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the principal
of, premium, if any, or interest on any Note or in the case of any Default
arising from the occurrence of a Change of Control, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.
Section 6.03. Certain Rights of Trustee.
Subject to Section 6.01 hereof and the provisions of Section 315 of
the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
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(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution
thereof;
(c) the Trustee may consult with counsel and any advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by the
Trustee in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of its own negligence, bad faith or willful misconduct;
(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, direction, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, other evidence of
indebtedness or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Notes then Outstanding; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require indemnity satisfactory to
it against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; provided, further, the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may deem
appropriate, 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) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodian or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder;
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(h) except with respect to Section 10.01, the Trustee shall have no
duty to inquire as to the performance of the Issuer's covenants in Article Ten.
In addition, 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 Sections
5.01(a), 5.01(b) and 10.01 or (ii) any Default or Event of Default of which the
Trustee shall have received written notification from the Issuer or the Holders
of at least 10% in aggregate principal amount of the Notes or a Responsible
Officer shall have obtained actual knowledge; and
(i) if the Trustee is acting in the capacity of Registrar and/or
Paying Agent, then the rights afforded to the Trustee under this Section 6.03
shall also be afforded to such Registrar and/or Paying Agent.
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of
Notes or Application of Proceeds Thereof.
The recitals contained herein and in the Notes, except the Trustee's
certificate of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1, if any, to be supplied to the Issuer
are true and accurate subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Issuer of
Notes or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc.
The Trustee, any Paying Agent, Registrar or any other agent of the
Issuer, in its individual or any other capacity, may become the owner or pledgee
of Notes, with the same rights it would have if it were not the Trustee, Paying
Agent, Registrar or such other agent and, subject to Section 6.08 hereof and
Sections 310 and 311 of the Trust Indenture Act, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee, Paying Agent,
Registrar or such other agent.
Section 6.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder.
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Section 6.07. Compensation and Indemnification of Trustee and Its
Prior Claim.
The Issuer covenants and agrees: (a) to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust); (b) to
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, fees, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation, fees, and the expenses and disbursements
of its counsel and of all agents and other persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its
negligence, bad faith or willful misconduct; and (c) to indemnify the Trustee
and any of its officers, directors, employees and agents and each predecessor
Trustee for, and to hold it harmless against any loss, liability or expense
(including attorneys' fees and expenses incurred in defending themselves)
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including
enforcement of this Section 6.07.
To secure the Issuer's payment obligations in this Section 6.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee in such capacity, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Notes upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Notes, and the Notes are hereby subordinated to such
senior claim. If the Trustee renders services and incurs expenses following an
Event of Default under Section 5.01(g) or (h) hereof, the parties hereto and the
Holders by their acceptance of the Notes hereby agree that such expenses are
intended to constitute expenses of administration under any bankruptcy law.
Section 6.08. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions of
Section 310(b) of the Trust Indenture Act.
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Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation eligible to act as Trustee under Trust Indenture Act Sections
310(a)(1) and (2) and which shall have a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of any Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may at any time resign by giving written notice
thereof to the Issuer at least 20 Business Days prior to the date of such
proposed resignation. Upon receiving such notice of resignation, the Issuer
shall, after all monies due and owing have been paid to the Trustee, promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor Trustee. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 20
Business Days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Note for at
least six consecutive months immediately prior to such date may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a successor
Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
a majority in principal amount of the Outstanding Notes, delivered to the
Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in accordance with Section 6.08
hereof after written request therefor by the Issuer or by any Holder who
has been a bona fide Holder of a Note for at least six consecutive months
immediately prior to such date, or
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(ii) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by the
Issuer or by any Holder who has been a bona fide Holder of a Note for at
least six consecutive months immediately prior to such date, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose or
rehabilitation, conservation or liquidation,
then, in any case, (x) the Issuer by a Board Resolution may remove the Trustee,
or (y) subject to Section 5.14, the Holder of any Note who has been a bona fide
Holder of a Note for at least six consecutive months immediately prior to such
date may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.
(e) If the Trustee shall resign, be removed or become disqualified
from or incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Issuer, by a Board Resolution, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Issuer and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Issuer. If no successor Trustee shall have been so appointed by
the Issuer or the Holders of the Notes and accepted appointment in the manner
hereinafter provided, the Holder of any Note who has been a bona fide Holder for
at least six consecutive months immediately prior to such date may, subject to
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Notes as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
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Section 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring (which term includes any Trustee
who resigns, is removed, becomes disqualified or incapable of acting or
otherwise ceases to be a Trustee hereunder) Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Issuer or the successor Trustee,
upon payment of amounts due to it pursuant to Section 6.07, such retiring
Trustee shall duly assign, transfer and deliver to the successor Trustee all
moneys and property at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers, duties and obligations of the retiring Trustee. Upon request of any such
successor Trustee, the Issuer shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 6.07.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders, by
mailing a notice to such Holders at their addresses as they shall appear on the
Note Register. If the acceptance of appointment is substantially contemporaneous
with the resignation, removal, disqualification or incapacity to act, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10 hereof. If the Issuer fails to give such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Issuer.
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or amalgamated, or any corporation resulting
from any merger, conversion, amalgamation or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act
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on the part of any of the parties hereto, provided such corporation shall be
eligible under this Article Six to serve as Trustee hereunder.
In case at the time such successor to the Trustee under this Section
6.12 shall succeed to the trusts created by this Indenture, any of the Notes
shall have been authenticated but not delivered by the Trustee then in office,
any such successor to the Trustee may adopt such authentication of any
predecessor Trustee and deliver such Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee under this Section 6.12 may authenticate such Notes either in the name
of any predecessor hereunder or in the name of the successor Trustee. In all
such cases, such certificate of authentication shall be of full force and effect
and shall be deemed to have been duly authenticated in accordance with this
Indenture.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01. Preservation of Information; Issuer To Furnish Trustee
Names and Addresses of Holders.
(a) The Trustee shall preserve the names and addresses of the Holders
and otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Issuer shall furnish or cause the Registrar to furnish to the
Trustee before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders.
Neither the Issuer nor the Trustee shall be under any responsibility with regard
to the accuracy of such list.
(b) The Issuer will furnish or cause to be furnished to the Trustee
(i) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date; and
(ii) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Subsection 7.01(b).
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Section 7.02. Communications of Holders.
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Notes pursuant to Section 312(b) of the
Trust Indenture Act. The Issuer and the Trustee and any and all other persons
intended to be beneficiaries of this Indenture shall have the protection
afforded by Section 312(c) of the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 following the date of this Indenture, the Trustee shall mail to all Holders,
as their names and addresses appear in the Note Register, a brief report dated
as of such May 15, in accordance with, and to the extent required under Section
313 of the Trust Indenture Act. At the time of its mailing to Holders, a copy of
each such report shall be filed by the Trustee with the Issuer, the SEC and with
each stock exchange on which the Notes are listed, if any. The Issuer shall
notify the Trustee when the Notes are listed on any stock exchange, if ever.
Section 7.04. Reports by Issuer.
The Issuer shall:
(a) file with the SEC the copies of annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) that would be required to be filed with the SEC pursuant to Section
13 or Section 15 of the Exchange Act if the Issuer had a class of securities
registered under the Exchange Act, whether or not the Issuer has a class of
securities registered under the Exchange Act;
(b) file with the Trustee within 15 days after it files or would be
required to file the information specified in subsection (a) of this Section
7.04 reports and documents with the SEC copies of such information;
(c) file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(d) transmit by mail to all Holders, as their names and addresses
appear in the Note Register, within 30 days after the filing thereof with the
Trustee, such summaries of any
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information, documents and reports required to be filed by the Issuer pursuant
to subsections (a) and (c) of this Section as may be required by rules and
regulations prescribed from time to time by the SEC.
Notwithstanding anything to the contrary herein, the Trustee shall
have no duty to review information provided pursuant to subsection (b) of this
Section 7.04 for purposes of determining compliance with any provisions of this
Indenture.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Issuer May Consolidate, etc., Only on Certain Terms.
The Issuer will not consolidate with, or merge with or into or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to any Person or permit any
Person to merge with or into the Issuer, unless:
(a) the Issuer shall be the continuing Person, or the Person (if other
than the Issuer) formed by such consolidation or into which the Issuer is merged
or that acquired or leased such property and assets of the Issuer shall be a
corporation organized and validly existing under the laws of the United States
of America or any jurisdiction thereof, and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Issuer on all of the Notes and under the Indenture;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
(c) immediately after giving effect to such transaction on a pro forma
basis, the Issuer, or any Person becoming the successor obligor of the Notes, as
the case may be, could Incur at least $1.00 of Indebtedness under clause (i) of
Section 10.11(a) hereof; provided, however, that this clause (c) shall not apply
to a consolidation or merger with or into a Wholly Owned Restricted Subsidiary
with a positive net worth, provided that in connection with any such merger or
consolidation, no consideration (except Capital Stock (other than Redeemable
Stock) in the surviving Person or the Issuer (or a Person that owns directly or
indirectly all of the Capital Stock of the surviving Person or the Issuer
immediately following such transaction) or cash paid to satisfy dissenter or
appraisal rights; provided that such rights are exercised with respect to no
more
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than 5% of the outstanding Capital Stock of the Issuer or other Person) shall be
issued or distributed to the stockholders of the Issuer; and
(d) the Issuer delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with clause (c)
above) and an Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture comply with this provision
and that all conditions precedent provided for herein relating to such
transaction have been complied with; provided, however, that clauses (b) and (c)
above do not apply if, in the good faith determination of the Board of Directors
of the Issuer, whose determination shall be evidenced by a Board Resolution, the
principal purpose of such transaction is to change the state of incorporation of
the Issuer; and provided further that any such transaction shall not have as one
of its purposes the evasion of the foregoing limitations.
Section 8.02. Successor Substituted.
Upon any consolidation or merger or any sale, conveyance, lease,
transfer or other disposition of all or substantially all of the assets of the
Issuer in accordance with the foregoing in which the Issuer is not the
continuing corporation, the successor corporation formed by such a consolidation
or into which the Issuer is merged or to which such transfer is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture and the Notes with the same effect as if such
successor corporation had been named as the Issuer herein and therein; and
thereafter, except in the case of (i) any consolidation or merger with, or (ii)
any sale, conveyance, transfer, lease or other disposition to a Restricted
Subsidiary, the Issuer shall be discharged from all obligations and covenants
under this Indenture and the Notes.
For all purposes of this Indenture and the Notes (including the
provision of this Article Eight and Section 10.11, Section 10.13 and Section
10.16), Subsidiaries of any successor entity will, upon such transaction or
series of related transactions, become Restricted Subsidiaries unless designated
an Unrestricted Subsidiary in accordance with the provisions of this Indenture
and all Indebtedness, and all Liens on property or assets, of the Issuer and the
Restricted Subsidiaries in existence immediately prior to such transaction or
series of related transactions will be deemed to have been Incurred upon such
transaction or series of related transactions.
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ARTICLE 9
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers Without
Consent of Holders.
Without the consent of any Holder, the Issuer, when authorized by a
Resolution of the Board of Directors, and the Trustee, at any time and from time
to time, may amend, waive, modify or supplement this Indenture or the Notes for
the following specified purposes:
(a) to evidence the succession of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer in the
Notes;
(b) 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,
herein, in the Notes;
(c) to cure any ambiguity, to correct or supplement any provision
herein, in the Notes which may be defective or inconsistent with any other
provision herein or to make any other provisions with respect to matters or
questions arising under this Indenture or the Notes; provided, however, that, in
each case, such provisions shall not materially adversely affect the legal
rights of the Holders;
(d) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by Section 9.05 hereof or otherwise;
(e) to mortgage, pledge, hypothecate or grant a security interest in
any property or assets in favor of the Trustee for the benefit of the Holders as
security for the payment and performance of the Indenture Obligations;
(f) to make any other change that does not materially adversely affect
the legal rights of any Holder; or
(g) to add Guarantors with respect to the Notes;
provided, however, that the Issuer has delivered to the Trustee an Opinion of
Counsel stating that such amendment, waiver, modification or supplement does not
materially adversely affect the legal rights of any Holder.
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Section 9.02. Supplemental Indentures, Agreements and Waivers With
Consent of Holders.
With the written consent of the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Notes delivered to the Issuer
and the Trustee, the Issuer when authorized by a Board Resolution, together with
the Trustee, may amend, waive, modify or supplement any other provision of this
Indenture or the Notes; provided, however, that no such amendment, waiver,
modification or supplement may, without the written consent of the Holder of
each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Note,
(b) reduce the principal of, or premium, if any, or interest on, any
Note,
(c) change the place or currency of payment of principal of, or
premium, if any, or interest on, any Note,
(d) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of a redemption, on or
after the Redemption Date) of any Note,
(e) reduce the above-stated percentage of outstanding Notes the
consent of whose Holders is necessary to modify or amend this Indenture,
(f) waive a default in the payment of principal of, premium, if any,
or interest on the Notes, or
(g) reduce the percentage or aggregate principal amount of outstanding
Notes the consent of whose Holders is necessary for waiver of compliance with
certain provisions of this Indenture or for waiver of certain defaults.
Upon the written request of the Issuer accompanied by a copy of a Board
Resolution of the Board of Directors authorizing the execution of any such
supplemental indenture or other instrument effecting an amendment, waiver,
modification or supplement authorized by this Section 9.02, and an Officers'
Certificate and an Opinion of Counsel upon which the Trustee shall be fully
protected in relying as conclusive evidence that such amendment, waiver,
modification or supplement is permitted by this Indenture and upon the filing
with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee
shall join with the Issuer in the execution of such supplemental indenture or
other instrument.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or other
instrument or amendment, modification, waiver or supplement, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures, Agreements and
Waivers.
In executing, or accepting the additional trusts created by, any
supplemental indenture, instrument or amendment, modification, waiver or
supplement permitted by this Article Nine or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate from each obligor under the Notes entering into such supplemental
indenture, instrument or amendment, modification, waiver or supplement, each
stating that the execution of such supplemental indenture, instrument or
amendment, modification, waiver or supplement (a) is authorized or permitted by
this Indenture and (b) does not violate the provisions of any agreement or
instrument evidencing any other Indebtedness of the Issuer or any other
Subsidiary of the Issuer. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture, instrument or amendment modification,
waiver or supplement which affects the Trustee's own rights, duties or
immunities under this Indenture, the Notes or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture, instrument or
amendment, modification, waiver or supplement under this Article Nine, this
Indenture or the Notes shall be modified in accordance therewith, and such
supplemental indenture, instrument, amendment, waiver or supplement shall form a
part of this Indenture or the Notes, as the case may be, for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture, instrument, amendment, modification, waiver or
supplement pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture, instrument, amendment, modification,
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waiver or supplement. If the Issuer shall so determine, new Notes so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any
such supplemental indenture, instrument, amendment, modification, waiver or
supplement may be prepared and executed by the Issuer and authenticated and
delivered by the Trustee upon an Issuer Order in exchange for Outstanding Notes.
Section 9.07. Record Date.
The Issuer may, but shall not be obligated to, fix, a record date for
the purpose of determining the Holders entitled to consent to any supplemental
indenture, instrument, amendment, modification, waiver or supplement, and shall
promptly notify the Trustee of any such record date. If a record date is fixed
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
supplemental indenture, instrument, amendment, modification, waiver or
supplement or to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
Section 9.08. Revocation and Effect of Consents.
Until a supplemental indenture , instrument, amendment, modification,
waiver or supplement becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if a notation of the consent is not made on any Note. However, any such
Holder, or subsequent Holder, may revoke the consent as to his Note or portion
of a Note if the Trustee receives the notice of revocation before the date a
supplement indenture becomes effective. A supplemental Indenture, instrument,
amendment, modification, waiver or supplement shall become effective in
accordance with its terms and thereafter bind every Holder.
ARTICLE 10
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Issuer shall duly and punctually pay the principal of, premium, if
any, and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
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Section 10.02. Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan in The City of
New York, State of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Chase Manhattan Bank,
55 Water Street, Room 000, Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxxx, Money Market Operations, will be such office or agency of the
Issuer, unless the Issuer shall designate and maintain some other office or
agency for one or more of such purposes. The Issuer will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Issuer hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Issuer may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York, State of New York)
where the Notes may be presented or surrendered for any or all such purposes and
may from time to time rescind such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in The City of New York, State of New
York for such purposes. The Issuer will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such other office or agency.
Section 10.03. Money for Note Payments To Be Held In Trust.
If the Issuer shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, premium, if any, or interest on
any of the Notes, segregate and hold in trust for the benefit of the Trustee or
the Holders entitled thereto a sum sufficient to pay the principal, premium, if
any, or interest so becoming due until such sums shall be paid to such persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act and of any Default by the Issuer (or any
other obligor upon the Notes) in the making of any payment of principal,
premium, if any, or interest on the Notes.
If the Issuer is not acting as Paying Agent, the Issuer will, on or
before each due date of the principal of, premium, if any, or interest on, any
Notes, deposit with a Paying Agent a sum in same day funds sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Holders entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of such action or any failure so to act.
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If the Issuer is not acting as Paying Agent, the Issuer will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 10.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any Default by the Issuer (or any other
obligor upon the Notes) in the making of any payment of principal of, premium,
if any, or interest on the Notes;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities of
such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
premium, if any, or interest has become due and payable shall be paid to the
Issuer upon receipt of an Issuer Request therefor or (if then held by the
Issuer) will be discharged from such trust; and the Holder of such Note will
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof,
will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, at the option of the Issuer in the New York
Times or the Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to the Issuer.
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Section 10.04. Corporate Existence.
Subject to Article Eight, the Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate or
partnership existence, rights (charter and statutory), licenses and franchises
of the Issuer and each of the Restricted Subsidiaries; provided, however, that
the Issuer will not be required to preserve any such right, license or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Issuer and the Restricted
Subsidiaries as a whole and that the loss thereof is not adverse in any material
respect to the Holders; provided, further, that the foregoing will not prohibit
a sale, transfer or conveyance of a Subsidiary of the Issuer or any of its
assets in compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed (i) upon the Issuer or any of its
Restricted Subsidiaries or (ii) upon the income, profits or property of the
Issuer or any of the Restricted Subsidiaries and (b) all material lawful claims
for labor, materials and supplies, which, if unpaid, could reasonably be
expected to become a Lien upon the property of the Issuer or any of the
Restricted Subsidiaries; provided, however, that the Issuer will not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (x) whose amount, applicability or validity is being contested
in good faith by appropriate proceedings properly instituted and diligently
conducted or (y) if the failure to so pay, discharge or cause to be paid or
discharged could not reasonably be expected to have a Material Adverse Effect
(as defined in the Purchase Agreement).
Section 10.06. Maintenance of Properties.
The Issuer shall cause all material properties owned by the Issuer or
any of the Restricted Subsidiaries or used or held for use in the conduct of
their respective businesses to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 10.06
will prevent the Issuer from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Issuer, desirable
in the conduct of its business or the business of any of the Restricted
Subsidiaries and is not disadvantageous in any material respect to the Holders.
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Section 10.07. Insurance.
The Issuer shall at all times keep all of its and the Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Issuer in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually and customarily so insured by corporations and partnerships similarly
situated and owning like properties.
Section 10.08. Books and Records.
The Issuer shall keep proper books of record and account, in which
full and correct entries will be made of all financial transactions and the
assets and business of the Issuer and each Restricted Subsidiary (including
Acquired Indebtedness) in material compliance with GAAP.
Section 10.09. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture and, in any event on at least
an annual basis, the Issuer will furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether such covenant or condition has
been complied with; and
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(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.10. Repurchase of Notes Upon a Change of Control.
The Issuer shall commence, within 30 days after the occurrence of a
Change of Control, an Offer to Purchase for all Notes then Outstanding in whole
or in part in integral multiples of $1,000, at a purchase price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest to the Payment
Date.
Section 10.11. Limitation on Indebtedness.
(a) The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness) other
than Permitted Indebtedness; provided that the Issuer may Incur Indebtedness, in
addition to Permitted Indebtedness, if, after giving effect to the Incurrence of
such Indebtedness and the receipt and application of the proceeds thereof, (i)
the Consolidated Leverage Ratio would be less than or equal to 7.0 to 1, for
Indebtedness Incurred on or prior to June 30, 2000, or less than or equal to 5.0
to 1, for Indebtedness Incurred thereafter and (ii) no Default or Event of
Default shall have occurred and be continuing or occur as a consequence of the
actions set forth in this Section 10.11.
(b) Notwithstanding any other provision of this Section 10.11, the
maximum amount of Indebtedness that the Issuer or a Restricted Subsidiary may
Incur pursuant to this Section 10.11 shall not be deemed to be exceeded due
solely to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section 10.11, (i) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (ii) any Liens
granted pursuant to the equal and ratable provisions referred to in Section
10.16 shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 10.11, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the definition of "Indebtedness", the Issuer, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses.
Section 10.12. Statement by Officers as to Default.
The Issuer will deliver to the Trustee, within 90 days after the end
of each fiscal year of the Issuer ending after the date hereof, a written
statement signed by the chairman or a
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chief executive officer, the principal financial officer or principal accounting
officer of the Issuer (or its general partner), stating (i) that a review of the
activities of the Issuer and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Issuer has kept, observed, performed and
fulfilled its obligations under this Indenture, and (ii) that, to the knowledge
of each officer signing such certificate, the Issuer has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in Default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default shall have
occurred, describing all such Defaults of which such officers may have
knowledge, their status and what action the Issuer is taking or proposes to take
with respect thereto). When any Default under this Indenture has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Issuer or any Restricted Subsidiary
gives any notice or takes any other action with respect to a claimed Default
(other than with respect to Indebtedness (other than Indebtedness evidenced by
the Notes) in the principal amount of less than $7.5 million), the Issuer will
promptly notify the Trustee of such Default, notice or action and will deliver
to the Trustee by registered or certified mail or by telegram, or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within five Business
Days after the Issuer becomes aware of such occurrence and what action the
Issuer is taking or proposes to take with respect thereto.
Section 10.13. Limitation on Restricted Payments.
(a) The Issuer will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, make any Restricted Payment if, at the time of, and
after giving effect to, the proposed Restricted Payment: (i) a Default or Event
of Default shall have occurred and be continuing, (ii) the Issuer could not
Incur at least $1.00 of Indebtedness under Section 10.11(a)(i) or (iii) the
aggregate amount of all Restricted Payments (the amount, if other than in cash,
to be determined in good faith by the Board of Directors of the Issuer, whose
determination shall be conclusive and evidenced by a Board Resolution) made
after the 1998 Senior Notes Issue Date shall exceed the sum of:
(1) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100%
of the amount of such loss) accrued on a cumulative basis during the period
(taken as one accounting period) beginning on the first day of the fiscal
quarter commencing immediately following the 1998 Senior Notes Issue Date
and ending on the last day of the last fiscal quarter preceding the
Calculation Date for which reports have been filed with the Commission or
provided to the Trustee pursuant to Section 10.22, plus
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(2) the aggregate Net Cash Proceeds received by the Issuer after
the 1998 Senior Notes Issue Date from a capital contribution from, or the
issuance and sale permitted by this Indenture to, a Person who is not a
Subsidiary of the Issuer of (a) its Capital Stock (other than Redeemable
Stock), (b) any options, warrants or other rights to acquire its Capital
Stock (in each case, exclusive of any Redeemable Stock or any options,
warrants or other rights that are redeemable at the option of the holder,
or are required to be redeemed, prior to the Stated Maturity of the Notes)
and (c) Indebtedness of the Issuer or a Restricted Subsidiary that has been
exchanged for or converted into Capital Stock of the Issuer (other than
Redeemable Stock) or such options, warrants or other rights, in each case
except to the extent such Net Cash Proceeds are used to Incur Indebtedness
permitted under clause (viii) of the definition of "Permitted
Indebtedness," plus
(3) an amount equal to the net reduction in Investments (other
than reductions in Permitted Investments and reductions in Investments made
pursuant to clause (vi) of subsection (b) of this Section 10.13) in any
Person resulting from payments of interest on Indebtedness, dividends,
repayments of loans or advances, or other transfers of assets, in each case
to the Issuer or any Restricted Subsidiary or from the Net Cash Proceeds
from the sale of any such Investment (except, in each case, to the extent
any such payment or proceeds is included in the calculation of Adjusted
Consolidated Net Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in
the definition of "Investments"), not to exceed, in each case, the amount
of Investments previously made by the Issuer or any Restricted Subsidiary
in such Person or Unrestricted Subsidiary.
(b) The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at such date of declaration, such payment would
comply with the foregoing paragraph;
(ii) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of
payment to the Notes, including premium, if any, and accrued and unpaid
interest thereon to the date of payment, with the proceeds of, or in
exchange for, Indebtedness Incurred under clause (iii) of the definition of
"Permitted Indebtedness";
(iii) the purchase, redemption or other acquisition or retirement
for value of Capital Stock of the Issuer (or options, warrants or other
rights to acquire such Capital Stock) in exchange for, or out of the
proceeds of a substantially concurrent
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offering to a Person who is not a Subsidiary of the Issuer of, shares of
Capital Stock (other than Redeemable Stock) of the Issuer (or options,
warrants or other rights to acquire such Capital Stock (exclusive of any
options, warrants or other rights that are redeemable at the option of the
holder, or are required to be redeemed, prior to the Stated Maturity of the
Notes)) including in connection with a "cashless" exercise of an option,
warrant or right;
(iv) the making of any principal payment or the purchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness of the Issuer which is subordinated in right of payment to the
Notes, including premium, if any, and accrued and unpaid interest thereon
to the date of payment, in exchange for, or out of the proceeds of, a
substantially concurrent offering to a Person who is not a Subsidiary of
the Issuer of, shares of the Capital Stock (other than Redeemable Stock) of
the Issuer (or options, warrants or other rights to acquire such Capital
Stock (exclusive of any options, warrants or other rights that are
redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of the Notes));
(v) payments or distributions to dissenting stockholders pursuant
to applicable law in connection with any consolidation, merger or transfer
of assets that complies with the provisions of this Indenture applicable to
mergers, consolidations and transfers of all or substantially all of the
property and assets of the Issuer;
(vi) Investments in any Person that is in the Telecommunications
Business on the date of such Investments; provided that the aggregate
amount of Investments made pursuant to this clause (vi) does not exceed the
sum of (x) $85 million plus (y) the amount of Net Cash Proceeds received by
the Issuer after the 1998 Senior Notes Issue Date as a capital contribution
or from the sale of Capital Stock (other than Redeemable Stock) of the
Issuer (or options, warrants or other rights to acquire such Capital Stock
(exclusive of any options, warrants or other rights that are redeemable at
the option of the holder, or are required to be redeemed, prior to the
Stated Maturity of the Notes)) to a Person who is not a Subsidiary of the
Issuer, except to the extent such Net Cash Proceeds are used to Incur
Indebtedness pursuant to clause (viii) under the definition of "Permitted
Indebtedness" or to make Restricted Payments pursuant to subsection
(a)(iii)(2) of this Section 10.13, or clauses (iii) or (iv) of Section
10.13(b), plus (z) the net reduction in Investments made pursuant to this
clause (vi) resulting from distributions on or repayments of such
Investments or from the Net Cash Proceeds from the sale of any such
Investment (except in each case to the extent any such payment or proceeds
is included in the calculation of Adjusted Consolidated Net Income) or from
such Person becoming a Restricted Subsidiary (valued in each case as
provided in the definition of "Investments"); provided that the net
reduction in any Investment shall not exceed the amount of such Investment;
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(vii) the purchase, redemption or other retirement or acquisition
for value of shares of Capital Stock of the Issuer to the extent necessary,
in the judgment of the Board of Directors of the Issuer, to prevent the
loss or secure the renewal or reinstatement of any license or franchise
held by the Issuer or any Restricted Subsidiary from any governmental
agency;
(viii) the purchase, redemption or other retirement or
acquisition for value of shares of Capital Stock of the Issuer, or options,
warrants or other rights to purchase such shares, held by directors,
employees, or former directors or employees of the Issuer or any Restricted
Subsidiary (or their estates or beneficiaries under their estates) upon
their death, disability, retirement or termination of employment or
pursuant to the terms of any agreement under which such shares of Capital
Stock or options were issued; provided that the aggregate consideration
paid for such purchase, redemption or other retirement or acquisition for
value of such shares of Capital Stock or options, warrants or rights after
the Issue Date does not exceed $2 million in any calendar year, or $5
million in the aggregate;
(ix) Investments acquired (x) as a capital contribution to the
Issuer or a Restricted Subsidiary or (y) in exchange for Capital Stock
(other than Redeemable Stock) of the Issuer (or options, warrants or other
rights to acquire such Capital Stock (exclusive of any options, warrants or
other rights that are redeemable at the option of the holder, or are
required to be redeemed, prior to the Stated Maturity of the Notes)) so
long as immediately after giving effect to such transaction described in
clause (y) above no Default or Event of Default shall have occurred and be
continuing;
(x) the purchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness of the Issuer which is subordinated in
right of payment to the Notes, including premium, if any, and accrued and
unpaid interest thereon to the date of payment, at a price not greater than
101% of the principal amount thereof plus any accrued and unpaid interest
thereon to the date of repayment in the event of a Change of Control in
accordance with provisions similar to Section 10.10 hereof; provided that
prior to such purchase, redemption, defeasance or other acquisition or
retirement, the Issuer has made the Change of Control Offer as provided in
such covenant with respect to the Notes and has purchased all Notes validly
tendered for payment in connection with such Change of Control Offer; or
(xi) any payment, distribution, repurchase or other transaction
that, but for this provision, would constitute a Restricted Payment but
only to the extent that the aggregate amount of such payments,
distributions, repurchases and other transactions do not exceed $25
million.
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(c) The actions described in clauses (i), (v), (vi), (vii), (viii),
(x) and (xi) of subsection (b) above will be Restricted Payments that will be
permitted in accordance with the immediately preceding paragraph but will reduce
the amount that would otherwise be available for Restricted Payments under
Section 10.13(a)(iii). The actions described in clauses (ii), (iii), (iv) and
(ix) of subsection (b) above will be Restricted Payments that will be permitted
in accordance with the immediately preceding paragraph and will not reduce the
amount that would otherwise be available for Restricted Payments under Section
10.13(a)(iii).
Section 10.14. Limitation on Transactions with Stockholders and
Affiliates.
The Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or assets,
or the rendering of any service) with any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock, of the Issuer or with any
Affiliate of the Issuer or any Restricted Subsidiary except (a) in writing
(other than the payment of salaries and bonuses to officers of the Issuer or any
Restricted Subsidiary in the ordinary course of business which need not be in
writing) upon fair and reasonable terms no less favorable in any material
respect to the Issuer or such Restricted Subsidiary than could be obtained, at
the time of the execution of the agreement providing therefor, in a comparable
arm's-length transaction with a Person that is not such a holder or an
Affiliate, (b) with respect to any transaction or series of related transactions
involving an aggregate value in excess of $5 million, if the Issuer delivers an
Officers' Certificate to the Trustee certifying that such transaction or series
of related transactions complies with clause (a) above, and (c) with respect to
any transaction or series of related transactions involving an aggregate value
in excess of $10 million, if either (1) such transaction or series of related
transactions has been approved by a majority of the Disinterested Directors of
the Issuer, or in the event there is only one Disinterested Director, by such
Disinterested Director, or (2) the Issuer delivers to the Trustee a written
opinion of an investment banking firm of national standing or other recognized
independent expert with experience appraising the terms and conditions of the
type of transaction or series of related transactions for which an opinion is
required stating that the transaction or series of related transactions is fair
to the Issuer or such Subsidiary from a financial point of view.
The foregoing limitation does not limit, and shall not apply to:
(i) any transaction solely between the Issuer and any of its
Wholly Owned Restricted Subsidiaries or solely between Wholly Owned
Restricted Subsidiaries;
(ii) the payment of reasonable and customary regular fees to
directors of the Issuer who are not employees of the Issuer;
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(iii) any payments or other transactions pursuant to any
tax-sharing agreement between the Issuer and any other Person with which
the Issuer files a consolidated tax return or with which the Issuer is part
of a consolidated group for tax purposes;
(iv) any Restricted Payments not prohibited by Section 10.13
hereof; or
(v) any transaction or agreement as described in the Offering
Memorandum and as in effect as of the date of the Offering Memorandum
Section 10.15. Limitation on Asset Sales.
The Issuer will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale, unless (i) the consideration received by the Issuer
or such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
consists of cash or Temporary Cash Investments (with the amount of Indebtedness
and liabilities of the Issuer or a Restricted Subsidiary that are
unconditionally assumed by the transferee being deemed to be cash for the
purposes of this Section 10.15). In the event and to the extent that the Net
Cash Proceeds received by the Issuer or any of its Restricted Subsidiaries from
one or more Asset Sales occurring on or after the 1998 Senior Notes Issue Date
in any period of 12 consecutive months exceed the greater of $10 million and 10%
of Adjusted Consolidated Net Tangible Assets (determined as of the date closest
to the commencement of such 12-month period for which a consolidated balance
sheet of the Issuer and its Subsidiaries has been filed with the Commission or
provided to the Trustee pursuant to Section 10.22 hereof, then the Issuer shall
or shall cause the relevant Restricted Subsidiary to (i) within 12 months after
the date Net Cash Proceeds so received exceed the greater of $10 million and 10%
of Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such
excess Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the
Issuer or any Restricted Subsidiary providing a Subsidiary Guarantee pursuant to
Section 10.23 hereof or Indebtedness of any other Restricted Subsidiary, in each
case owing to a Person other than the Issuer or any of its Subsidiaries, or (B)
invest an amount equal to such excess Net Cash Proceeds, or the amount of such
Net Cash Proceeds not so applied pursuant to clause (A) (or enter into a
definitive agreement committing to so invest within 12 months after the date of
such agreement), in Telecommunications Assets and (ii) apply (no later than the
end of the 12-month period referred to in clause (i)) such excess Net Cash
Proceeds (to the extent not applied pursuant to clause (i)) as provided in the
following paragraph of this Section 10.15. The amount of such excess Net Cash
Proceeds required to be applied (or to be committed to be applied) during such
12-month period as set forth in clause (i) of the preceding sentence and not
applied as so required by the end of such period shall constitute "Excess
Proceeds." Pending the final application of any such Net Cash
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Proceeds, the Issuer or such Restricted Subsidiary may invest such funds in
Temporary Cash Investments or temporarily reduce revolving Indebtedness under
any Credit Facility or any Vendor Credit Facility.
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 10.15 totals at least $10 million, the Issuer shall commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Notes equal to the Excess Proceeds on such date, at a purchase price equal to
100% of the principal amount of the Notes plus, in each case, accrued interest
to the Payment Date. To the extent the Issuer or a Restricted Subsidiary is
required under the terms of Indebtedness of the Issuer or such Restricted
Subsidiary which is pari passu with, or (in the case of any secured
Indebtedness) senior with respect to such collateral to, the Notes with any
proceeds which constitute Excess Proceeds under this Indenture, the Issuer shall
make a pro rata offer to the holders of all other pari passu Indebtedness
(including the Notes) with such proceeds. If the aggregate principal amount of
Notes and other pari passu Indebtedness surrendered by holders thereof exceeds
the amount of such Excess Proceeds, the Trustee shall select the Notes and other
pari passu Indebtedness to be purchased on a pro rata basis. To the extent that
the aggregate purchase price for the Notes tendered pursuant to an Offer to
Purchase is less than the Excess Proceeds, the Issuer or any Restricted
Subsidiary may use such deficiency for general corporate purposes. Upon
completion of such Offer to Purchase, the amount of Excess Proceeds shall be
reset to zero.
Section 10.16. Limitation on Liens.
The Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on any
of its assets or properties of any character, or any shares of Capital Stock or
Indebtedness of any Restricted Subsidiary, without making effective provision
for all of the Notes and all other amounts due under this Indenture to be
directly secured equally and ratably with (or, if the obligation or liability to
be secured by such Lien is subordinated in right of payment to the Notes, prior
to) the obligation or liability secured by such Lien. The foregoing limitation
does not apply to Permitted Liens.
Section 10.17. Intentionally Omitted.
Section 10.18. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries.
The Issuer will not sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of a Restricted Subsidiary or permit any Restricted
Subsidiary, directly or indirectly,
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to issue, sell pledge, hypothecate or otherwise convey or dispose of, any shares
of Capital Stock of a Restricted Subsidiary (including options, warrants or
other rights to purchase shares of such Capital Stock) except:
(a) to the Issuer or a Wholly Owned Restricted Subsidiary,
(b) issuances of director's qualifying shares or other issuances or
sales to the extent required by applicable law or regulation,
(c) issuances or sales of 100% of the Capital Stock of a Restricted
Subsidiary; provided that the Issuer or such Restricted Subsidiary applies the
Net Cash Proceeds, if any, of any such sale pursuant to this clause (c) in
accordance with clause (A) or (B) of the first paragraph of Section 10.15
hereof;
(d) issuances or sales in a transaction if, immediately after giving
effect thereto, such Restricted Subsidiary would no longer be a Restricted
Subsidiary if (i) such transaction does not violate Section 10.15 hereof and
(ii) any Investment in such Person remaining after giving effect to such
transaction would not violate Section 10.13 hereof if made at the date of such
issuance or sale,
(e) pursuant to a Credit Facility or a Vendor Credit Facility,
(f) issuances or sales of Redeemable Stock in exchange for, or upon
conversion of, or the proceeds from the issuance or sale of which are used to
refinance, shares of Redeemable Stock of such Restricted Subsidiary if the
amounts payable with respect to the redemption of such newly issued or sold
Redeemable Stock do not exceed the amount payable with respect to the redemption
of the Redeemable Stock being exchanged, converted or refinanced and such newly
issued or sold Redeemable Stock does not require any redemption earlier than the
date on which the Redeemable Stock being exchanged, converted or refinanced
required a redemption, or
(g) issuances or sales of Redeemable Stock (other than Redeemable
Stock convertible into or exchangeable for Common Stock of any Restricted
Subsidiary) that do not otherwise violate the provisions of this Indenture.
Section 10.19. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
(a) The Issuer will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to
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(i) pay dividends, in cash or otherwise, or make any other distributions
permitted by applicable law, on any Capital Stock or any other interest or
participation in, or measured by, its profits of such Restricted Subsidiary
owned by the Issuer or any other Restricted Subsidiary, (ii) pay any
Indebtedness owed to the Issuer or any other Restricted Subsidiary, (iii) make
loans or advances to the Issuer or any other Restricted Subsidiary or (iv)
transfer any of its property or assets to the Issuer or any other Restricted
Subsidiary.
(b) The provisions of subsection (a) above shall not restrict any
encumbrances or restrictions:
(i) in the 1998 Senior Notes Indenture, this Indenture or any
other agreements in effect on the 1998 Senior Notes Issue Date, and any
extensions, refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced, renewed or
replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Issuer or any Restricted Subsidiary
and existing at the time of such acquisition and not incurred in
contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other than
such Person or the property or assets of such Person so acquired;
(iv) in the case of Section 10.19(a)(iv) above, (A) that restrict
in a customary manner the subletting, assignment or transfer of any
property or asset that is a lease, license, conveyance or contract or
similar property or asset, (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Issuer or any Restricted Subsidiary not otherwise
prohibited by this Indenture or (C) arising or agreed to in the ordinary
course of business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or
assets of the Issuer or any Restricted Subsidiary in any manner material to
the Issuer or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant
to an agreement that has been entered into for the sale or disposition of
all or substantially all of the Capital Stock of, or property and assets
of, such Restricted Subsidiary; or
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(vi) pursuant to (x) a Credit Facility, (y) a Vendor Credit
Facility or (z) any agreement which amends, extends, renews, refinances,
replaces or refunds a Credit Facility or Vendor Credit Facility provided,
however, that in the case of subclauses (x), (y) and (z), the provisions of
the Credit Facility or Vendor Credit Facility (A) permit (whether
explicitly or as a result of the relative maturities of the Credit
Facility, the Vendor Credit Facility and the Notes) distributions to the
Issuer for the purposes of, and in an amount sufficient to fund, the
payment of principal due at stated maturity and interest in respect of the
Notes (provided, in either case, that such payment is due or to become due
within 30 days from the date of such distribution) at a time when there
does not exist an event which after notice or passage of time or both would
permit the lenders under the Credit Facility or Vendor Credit Facility to
declare all amounts thereunder due and payable, and (B) provide that in no
event shall any encumbrance or restriction pursuant to the Credit Facility
or Vendor Credit Facility prohibit distributions to the Issuer for such
purposes for more than 180 days in any consecutive 360 day period, unless
(1) there exists a default under the Credit Facility or Vendor Credit
Facility resulting from any payment default under the Credit Facility or
Vendor Credit Facility or (2) the maturity of the Credit Facility or Vendor
Credit Facility has been accelerated.
(c) Nothing contained in this Section 10.19 shall prevent the Issuer
or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering
to exist any Liens otherwise permitted in Section 10.16 hereof or (ii)
restricting the sale or other disposition of property or assets of the Issuer or
any of its Restricted Subsidiaries subject to such Liens.
Section 10.20. Limitation on Sale-Leaseback Transactions.
(a) The Issuer will not, and will not permit any Restricted Subsidiary
to, enter into any sale-leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby the Issuer or a
Restricted Subsidiary sells or transfers such assets or properties and then or
thereafter leases such assets or properties or any part thereof or any other
assets or properties which the Issuer or such Restricted Subsidiary, as the case
may be, intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred.
(b) The foregoing restriction in subsection (a) above does not apply
to any sale-leaseback transaction if (i) the lease is for a period, including
renewal rights, of not in excess of three years; (ii) the lease secures or
relates to industrial revenue or pollution control bonds; (iii) the transaction
is solely between the Issuer and any Wholly Owned Restricted Subsidiary or
solely between Wholly Owned Restricted Subsidiaries; or (iv) the Issuer or such
Restricted Subsidiary, within 12 months after the sale or transfer of any assets
or properties is completed, applies an amount not less than the net proceeds
received from such sale in accordance with clause (A) or (B) of the first
paragraph of Section 10.15 hereof.
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Section 10.21. Limitation on Restrictive Covenants.
Notwithstanding any other provisions of this Indenture, the
restrictive covenants set forth herein, including, without limitation, those set
forth in Sections 10.13, 10.14, 10.15, 10.16, 10.18, 10.19 and 10.20 shall be
and shall be deemed limited to the extent necessary so that the creation,
existence and effectiveness of such restrictive covenants shall not result in a
breach of Section 10.19 of the 1998 Senior Notes Indenture.
Section 10.22. Commission Reports and Reports to Holders.
At all times from and after the earlier of (i) the date of the
commencement of an Exchange Offer or the effectiveness of a Shelf Registration
Statement (the "Registration") and (ii) the date that is six months after the
Issue Date, in either case, whether or not the Issuer is then required to file
reports with the Commission, the Issuer shall file with the Commission (if
permitted by Commission practice and applicable law and regulations) all such
reports and other information as it would be required to file with the
Commission by Section 13(a) or 15(d) under the Exchange Act if it were subject
thereto. The Issuer shall supply the Trustee and each Holder or shall supply to
the Trustee for forwarding to each such Holder, without cost to such Holder,
copies of such reports and other information; provided however, that the copies
of such reports and information mailed to Holders need not contain the exhibits
thereto, but the Issuer agrees to furnish any such exhibits to any Holder upon
written request therefor. In addition, at all times prior to the earlier of the
date of the Registration and the date that is six months after the Issue Date,
the Issuer shall, at its cost, deliver or caused to be delivered to each Holder
of the Notes quarterly and annual reports substantially equivalent to those
which would be required by the Exchange Act; it being understood that the
financial statements included in such reports shall be prepared in accordance
with generally accepted accounting principles in effect at such time. The
financial information contained in the Offering Memorandum will be deemed to
have been delivered to the Trustee pursuant to this section. In addition, at all
times prior to the Registration, upon the request of any Holder or any
prospective purchaser of the Notes designated by a Holder, the Issuer shall
supply to such Holder or such prospective purchaser the information required
under Rule 144A under the Securities Act.
Section 10.23. Limitation on Issuances of Guarantees by Restricted
Subsidiaries.
The Issuer will not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee any Indebtedness of the Issuer which is pari passu in
right of payment with, or subordinate in right of payment to, the Notes
("Guaranteed Indebtedness"), unless:
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(i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a
Guarantee (a "Subsidiary Guarantee") of payment of the Notes by such
Restricted Subsidiary and
(ii) such Restricted Subsidiary waives, and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Issuer or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Subsidiary Guarantee;
provided that this paragraph shall not be applicable to (x) any Guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or (y) any Guarantee of any Restricted
Subsidiary of Indebtedness Incurred under Credit Facilities or Vender Credit
Facilities pursuant to clause (ix) of the definition of "Permitted
Indebtedness". If the Guaranteed Indebtedness is (A) pari passu in right of
payment with the Notes, then the Guarantee of such Guaranteed Indebtedness shall
be pari passu in right of payment with, or subordinated in right of payment to,
the Subsidiary Guarantee or (B) subordinated in right of payment to the Notes,
then the Guarantee of such Guaranteed Indebtedness shall be subordinated in
right of payment to the Subsidiary Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated in right of payment to the Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary may provide by its terms that it shall be automatically
and unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Issuer, of all of the Issuer's
and each Restricted Subsidiary's Capital Stock in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale, exchange or transfer is
not prohibited by this Indenture) or (ii) the release or discharge of the
Guarantee which resulted in the creation of such Subsidiary Guarantee, except a
discharge or release by or as a result of payment under such Guarantee.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, on
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written demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either (i) all Notes theretofore authenticated and delivered
(other than (x) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 hereof and (y) Notes for whose
payment money has theretofore been irrevocably deposited or caused to be
deposited in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or (ii) all such
Notes not theretofore delivered to the Trustee for cancellation have become due
and payable and the Issuer has irrevocably deposited or caused to be deposited
with the Trustee in trust an amount of money in dollars sufficient to pay and
discharge the entire Indebtedness on such issue of Notes not theretofore
delivered to the Trustee for cancellation, for the principal of, premium, if
any, and interest to the date of such deposit or maturity date of redemption;
and
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer (other than amounts that could become payable under
Sections 4.06 or 6.07); and
(c) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; provided, that such Opinion of Counsel may rely, as to
matters of fact, upon an Officers' Certificate.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Sections 4.06 and 6.07 and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this Section 11.01, the obligations of the Trustee under Section 11.02 and
the last paragraph of Section 10.03 shall survive.
Section 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 11.01 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal of, premium, if
any, and interest on the Notes for whose payment such money has been deposited
with the Trustee.
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ARTICLE 12
REDEMPTION
Section 12.01. Right of Redemption; Mandatory Redemption. The Notes
will be redeemable, at the Issuer's option, in whole or in part, at any time or
from time to time, on or after May 1, 2004 and prior to maturity, upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's last address, as it appears in the Note Register, at the following
Redemption Prices (expressed in percentages of principal amount), plus accrued
and unpaid interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date), if redeemed during the 12
month period commencing May 1 of the years set forth below:
REDEMPTION
YEAR PRICE
---- -----
2004................... 105.750%
2005.................. 103.834%
2006.................. 101.917%
2007 and thereafter... 100.000%
In addition, at any time or from time to time on or prior to May 1, 2002, the
Issuer may, other than in any circumstances resulting in a Change of Control,
redeem, at its option, up to 35% of the aggregate principal amount of the Notes
with the proceeds of one or more additional Public Equity Offerings or Strategic
Equity Investments resulting in aggregate gross proceeds to the Issuer of at
least $25 million, at any time or from time to time in part, at a Redemption
Price (expressed as a percentage of principal amount) of 111.50%, plus accrued
and unpaid interest to the Redemption Date (subject to the right of Holders of
record on the relevant record date that is prior to the Redemption Date to
receive interest due on an Interest Payment Date); provided that at least 65% of
the aggregate principal amount of Notes originally issued remain outstanding
after each such redemption. Any such redemption shall be made within 60 days
after the consummation of such Public Equity Offering or Strategic Equity
Investment upon not less than 30 nor more than 60 days' prior notice.
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Section 12.02. Notice to the Trustee.
If the Issuer elects to redeem Notes pursuant to Paragraph 3 of the
Initial Notes or Paragraph 2 of the Exchange Notes, it shall notify the Trustee
of the Redemption Date and principal amount of Notes to be redeemed.
The Issuer shall notify the Trustee of any redemption at least 45 days
before the Redemption Date by an Officers' Certificate, stating that such
redemption will comply with the provisions hereof and of the Notes.
Section 12.03. Selection of Notes to be Redeemed.
In the event that less than all of the Notes are to be redeemed at any
time, selection of such Notes for redemption will be made by the Trustee in
compliance with any applicable requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not then
listed on a national securities exchange (or if the Notes are so listed but the
exchange does not impose requirements with respect to the selection of debt
securities for redemption), on a pro rata basis, by lot or by such method as the
Trustee in its sole discretion shall deem fair and appropriate; provided,
however, that no Notes of a principal amount of $1,000 or less shall be redeemed
in part.
The Trustee shall promptly notify the Issuer and the Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
Section 12.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at the address of such Holder
appearing in the Note Register maintained by the Registrar.
All notices of redemption shall identify the Notes to be redeemed and
shall state:
(a) the Redemption Date;
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(b) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(c) that, unless the Issuer defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes is to
receive payment of the Redemption Price plus unpaid interest on the Notes
through the Redemption Date, upon surrender to the Paying Agent of the Notes
redeemed;
(d) if any Note is to be redeemed in part, the portion of the
principal amount at maturity (equal to $1,000 or any integral multiple thereof)
of such Note to be redeemed and that on and after the Redemption Date, upon
surrender for cancellation of such Note to the Paying Agent, a new Note or Notes
in the aggregate principal amount at maturity equal to the unredeemed portion
thereof will be issued without charge to the Holder of such Note;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price and the name and address of the Paying
Agent; and
(f) the CUSIP or CINS number, if any, relating to such Notes.
Notice of redemption of Notes to be redeemed at the election of the
Issuer shall be given by the Issuer or, at the Issuer's written request, by the
Trustee in the name and at the expense of the Issuer.
Section 12.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders of record at
the close of business on the relevant Record Dates referred to in the Notes.
Section 12.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit with the
Paying Agent an amount of money in same day funds sufficient to pay the
Redemption Price of, and any accrued interest on, all the Notes or portions
thereof which are to be redeemed on that date, other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Issuer to the Trustee for cancellation.
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If the Issuer complies with the preceding paragraph, then, unless the
Issuer defaults in the payment of such Redemption Price, interest on the Notes
to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment, and the Holders of such
Notes shall have no further rights with respect to such Notes except for the
right to receive the Redemption Price plus unpaid interest on the Notes through
the Redemption Date, upon surrender of such Notes. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal, premium, if any, and, to the extent lawful, accrued interest thereon
shall, until paid, bear interest from the Redemption Date at the rate provided
in the Notes.
Section 12.07. Notes Redeemed in Part.
Upon surrender to the Paying Agent of a Note which is to be redeemed
in part, the Issuer shall execute and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the Note so surrendered that is not redeemed.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first written above.
ISSUER:
CAPROCK COMMUNICATIONS CORP.
By: /s/ XXXX X. XXXXXXXX XX.
-----------------------------------
Name:
Title:
TRUSTEE:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ XXXXX XXXXXX
-----------------------------------
Name:
Title:
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EXHIBIT A-1
FORM OF NOTE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH CAPROCK COMMUNICATIONS CORP. (THE "COMPANY") OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
114
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
115
CAPROCK COMMUNICATIONS CORP.
11 1/2% SENIOR NOTES DUE 2009, SERIES A
CUSIP No.
No. 140667 AC 0
CAPROCK COMMUNICATIONS CORP., a corporation incorporated under the
laws of the State of Texas ("Issuer", which term includes any successor Person
under the Indenture hereinafter referred to) for value received, hereby promises
to pay to _______________ or registered assigns, the principal sum of
_______________ Dollars on May 1, 2009, at the office or agency of the Issuer
referred to below, and to pay interest thereon on May 1 and November 1 (each an
"Interest Payment Date"), of each year, commencing on November 1, 1999, accruing
from May 18, 1999 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 11 1/2% per annum,
until the principal hereof is paid or duly provided for. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the April 15 and
October 15 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the then applicable interest rate borne by the Notes, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date
and may be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Issuer maintained for that
purpose in the Borough of Manhattan in The City of New York, State of New York,
or at such other office or agency of the Issuer as may be maintained for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Issuer by
check mailed to the address of the person entitled thereto as such address shall
appear on the Note Register.
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Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
117
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: CAPROCK COMMUNICATIONS CORP.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/2% Senior Notes due 2009, Series A, referred
to in the within-mentioned Indenture.
Chase Manhattan Trust Company,
National Association, as Trustee
By:
--------------------------------
Authorized Signatory
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REVERSE OF NOTE
1. Indenture. This Note is one of a duly authorized issue of Notes of
the Issuer designated as the 11 1/2% Senior Notes due 2009, Series A (herein
called the "Initial Notes"). The Notes are limited (except as otherwise provided
in the Indenture referred to below) in aggregate principal amount to
$210,000,000, which may be issued under an indenture (herein called the
"Indenture") dated as of May 18, 1999, by and among the Issuer and Chase
Manhattan Trust Company, National Association, as trustee (herein called the
"Trustee,"which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Issuer, the Trustee and the Holders
of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes include the Initial Notes, the Private
Exchange Notes and the Unrestricted Notes (including the Exchange Notes referred
to below),issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement. The Initial Notes, the Private Exchange Notes and the Exchange
Notes are treated as a single class of securities under the Indenture.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Notes 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. Section 77aaa-77bbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
2. Registration Rights. Pursuant to the Registration Rights Agreement
by and among the Issuer and the Initial Purchasers, the Issuer will be obligated
to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for 11 1/2% Senior Notes due 2009, Series
B, of the Issuer (herein called the "Exchange Notes"),which have been registered
under the Securities Act, in like principal amount and having identical terms as
the Notes (other than as set forth in this paragraph). The Holders of Notes
shall be entitled to receive certain additional interest payments in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
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3. Redemption. The Notes will be redeemable, at the option of the
Issuer, in whole or in part, on or after May 1, 2004 upon not less than 30 nor
more than 60 days' written notice at the redemption prices (expressed as
percentages of principal amount at maturity) set forth below, plus accrued and
unpaid interest thereon, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on May 1 of each of the years indicated
below:
YEAR PERCENTAGE
2004................................................. 105.750%
2005................................................. 103.834%
2006................................................. 101.917%
2007 and thereafter.................................. 100.000%
In addition, at any time or from time to time on or prior to May 1,
2002, the Issuer may, other than in any circumstances resulting in a Change of
Control, redeem, at its option, up to 35% of the aggregate principal amount of
the Notes with the proceeds of one or more additional Public Equity Offerings or
Strategic Equity Investments resulting in aggregate gross proceeds to the Issuer
of at least $25 million, at any time or from time to time in part, at a
Redemption Price (expressed as a percentage of principal amount) of 111.50%,
plus accrued and unpaid interest to the Redemption Date (subject to the right of
Holders of record on the relevant record date that is prior to the Redemption
Date to receive interest due on an Interest Payment Date); provided that at
least 65% of the aggregate principal amount of Notes originally issued remain
outstanding after each such redemption. Any such redemption shall be made within
60 days after the consummation of such Public Equity Offering or Strategic
Equity Investment upon not less than 30 nor more than 60 days' prior notice.
4. Offers to Purchase. Sections 10.10 and 10.15 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to certain conditions and limitations contained
therein, the Issuer shall make an offer to purchase all or a portion of the
Notes in accordance with the procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
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6. Defeasance. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Issuer on this Note and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Issuer with
certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Issuer and the rights of the Holders under the
Indenture at any time by the Issuer and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Notes at the time Outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages of aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Note and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
8. Denominations, Transfer and Exchange. The Notes are issuable only
in registered form without coupons in denominations of $1,000 principal amount
at maturity and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Notes are exchangeable for
a like aggregate principal amount of Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Issuer, upon surrender of this Note for registration of transfer at the
office or agency of the Issuer maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Issuer as may be maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment
of this Note for registration of transfer, the Issuer, the Trustee and any agent
of the Issuer or the
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Trustee may treat the person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note shall be overdue, and neither
the Issuer, the Trustee nor any agent shall be affected by notice to the
contrary.
10. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Issuer will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to: CapRock
Communications Corp., 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
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ASSIGNMENT FORM
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the date two years (or such shorter period of time as
permitted by Rule 144 under the Securities Act or any successor provision
thereunder) after the later of the original issuance date appearing on the face
of this Note (or any predecessor Note) or the last date on which the Issuer or
any Affiliate of the Issuer was the owner of this Note (or any predecessor
Note), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that:
Check One
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents, including (i) a transferee certificate
substantially in the form of Exhibit C to the Indenture in the case of
a transfer to a non-QIB Accredited Investor or (ii) a transfer
certificate substantially in the form of Exhibit D to the Indenture in
124
the case of a transfer pursuant to Regulation S, are being furnished
which comply with the conditions of transfer set forth in this Note
and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Note in the name of
any person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 3.16 and Section
3.17 of the Indenture shall have been satisfied.
Date: Your signature:
(Sign exactly as your name appears
on the other side of this note)
By:
-----------------------------------
NOTICE: To be executed by
an executive officer
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor and Issuer are relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: By:
-----------------------------------
NOTICE: To be executed by
an executive officer
126
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to
Section 10.10 or 10.15 of the Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Note purchased by the Issuer
pursuant to Section 10.10 or 10.15 of the Indenture, state the amount:
$
Date: Your signature:
(Sign exactly as your name appears
on the other side of this note)
By:
---------------------------------
NOTICE: To be executed by
an executive officer
127
EXHIBIT A-2
CAPROCK COMMUNICATIONS CORP.
11 1/2% SENIOR NOTES DUE 2009, SERIES B
CUSIP No. 140667 AD 8
No. $
CAPROCK COMMUNICATIONS CORP., a corporation incorporated under the
laws of the State of Texas (the "Issuer," which term includes any successor
person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______________ or registered assigns, the principal sum of
_______________ Dollars on May 1, 2009, at the office or agency of the Issuer
referred to below, and to pay interest thereon on May 1 and November 1 (each an
"Interest Payment Date"), of each year, commencing on November 1, 1999, accruing
from May 18, 1999 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 11 1/2% per annum,
until the principal hereof is paid or duly provided for. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the April 15 and
October 15 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the then applicable interest rate borne by the Notes, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Issuer maintained for that
purpose in the Borough of Manhattan in The City of New York, State of New York,
or at such other office or agency of the Issuer as may be maintained for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that
128
payment of interest may be made at the option of the Issuer by check mailed to
the address of the person entitled thereto as such address shall appear on the
Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
CAPROCK COMMUNICATIONS CORP.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/2% Senior Notes due 2009, Series B, referred
to in the within-mentioned Indenture.
Chase Manhattan Trust Company,
National Association, as Trustee
By:
------------------------------
Authorized Signatory
131
[REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue of Notes of
the Issuer designated as its 11 1/2% Senior Notes due 2009, Series B (herein
called the "Exchange Notes"). The Notes are limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$210,000,000, which may be issued under an indenture (herein called the
"Indenture") dated as of May 18, 1999, by and between the Issuer and Chase
Manhattan Trust Company, National Association, as trustee (herein called the
"Trustee,"which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Issuer, the Trustee, and the
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes include the Initial Notes, the Private
Exchange Notes and the Unrestricted Notes (including the Exchange Notes), issued
in exchange for the Initial Notes pursuant to the Registration Rights Agreement.
The Initial Notes, the Private Exchange Notes and the Exchange Notes are treated
as a single class of securities under the Indenture.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Notes 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. Section 77aaa-77bbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
2. Redemption. The Notes will be redeemable, at the option of the
Issuer, in whole or in part, on or after May 1, 2004 upon not less than 30 nor
more than 60 days' written notice at the redemption prices (expressed as
percentages of principal amount at maturity) set forth below, plus accrued and
unpaid interest thereon, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on May 1 of each of the years indicated
below:
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YEAR PERCENTAGE
---------------------------------------------------------
2004......................................... 105.750%
2005......................................... 103.834%
2006......................................... 101.917%
2007 and thereafter.......................... 100.000%
In addition, at any time or from time to time on or prior to May 1,
2002, the Issuer may, other than in any circumstances resulting in a Change of
Control, redeem, at its option, up to 35% of the aggregate principal amount of
the Notes with the proceeds of one or more additional Public Equity Offerings or
Strategic Equity Investments resulting in aggregate gross proceeds to the Issuer
of at least $25 million, at any time or from time to time in part, at a
Redemption Price (expressed as a percentage of principal amount) of 111.50%,
plus accrued and unpaid interest to the Redemption Date (subject to the right of
Holders of record on the relevant record date that is prior to the Redemption
Date to receive interest due on an Interest Payment Date); provided that at
least 65% of the aggregate principal amount of Notes originally issued remain
outstanding after each such redemption. Any such redemption shall be made within
60 days after the consummation of such Public Equity Offering or Strategic
Equity Investment upon not less than 30 nor more than 60 days' prior notice.
3. Offers to Purchase. Sections 10.10 and 10.15 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to certain conditions and limitations contained
therein, the Issuer shall make an offer to purchase all or a portion of the
Notes in accordance with the procedures set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
5. Defeasance. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Issuer on this Note and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Issuer with
certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Issuer and the rights of the Holders under the
Indenture at any time by the Issuer and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Notes at the time Outstanding. The Indenture also contains provisions permitting
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the Holders of specified percentages of aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Note and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
7. Denominations, Transfer and Exchange. The Notes are issuable only
in registered form without coupons in denominations of $1,000 principal amount
at maturity and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Notes are exchangeable for
a like aggregate principal amount of Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Issuer, upon surrender of this Note for registration of transfer at the
office or agency of the Issuer maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Issuer as may be maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
8. Persons Deemed Owners. Prior to and at the time of due presentment
of this Note for registration of transfer, the Issuer, the Trustee and any agent
of the Issuer or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Trustee nor any agent shall be affected
by notice to the contrary.
9. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
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The Issuer will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to: CapRock
Communications Corp., 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
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ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Agent to transfer this Note 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 note)
By:
----------------------------------
NOTICE: To be executed by
an executive officer
136
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to
Section 10.10 or 10.15 of the Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Note purchased by the Issuer
pursuant to Section 10.10 or 10.15 of the Indenture, state the amount:
$
Date: Your signature:
(Sign exactly as your name appears
on the other side of this note)
By:
-----------------------------------
NOTICE: To be executed by
an executive officer
Signature Guarantee:
137
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THIS INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND
NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
138
EXHIBIT C
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
Ladies and Gentlemen:
In connection with the proposed purchase of $__________ aggregate
principal amount of the 11 1/2% Senior Notes due 2009 (the "Notes") of CapRock
Communications Corp., CapRock Telecommunications Corp. and CapRock Fiber
Network, Ltd. (the "Issuer"), the undersigned confirms that:
1. It understands and acknowledges that the Notes have not been
registered under the Securities Act or any other applicable securities laws, are
being offered for resale in transactions not requiring registration under the
Securities Act or any other securities laws, including sales pursuant to Rule
144A under the Securities Act, and may not be offered, sold or otherwise
transferred except in compliance with the registration requirements of
Securities Act or any other applicable securities law, pursuant to an exemption
therefrom or in a transaction not subject thereto and in each case in compliance
with the conditions for transfer set forth in paragraph (4) below.
2. It is not an "affiliate" (as defined in Rule 144 under the
Securities Act) of Issuer or acting on behalf of the Issuer and is either:
(a) a QIB and is aware that any sale of Notes to it will be
made in reliance on Rule 144A and such acquisition will be for its own account
or for the account of another QIB, or
(b) an institution that, at the time the buy order for the
Notes was originated, was outside the United States and was not a U.S. person
(and was not purchasing for the account or benefit of a U.S. person) within the
meaning of Regulation S under the Securities Act.
3. It acknowledges that none of the Issuer, the Initial Purchasers or
any person representing the Issuer or the Initial Purchasers has made any
representation to it with respect to the Issuer or the offering or sale of any
Notes, other than the information contained in the Offering Memorandum, which
Offering Memorandum has been delivered to it and upon which it is relying in
making its investment decision with respect to the Notes. Accordingly, it
acknowledges that no representation or warranty is made by the Initial
Purchasers as to the
139
accuracy or completeness of such materials. It has had access to such financial
and other information concerning the Issuer and the Notes as it has deemed
necessary in connection with its decision to purchase any of the Notes,
including an opportunity to ask questions of and request information from the
Issuer and the Initial Purchasers.
4. It is purchasing the Notes for its own account, or for one or more
investor accounts for which it is acting as a fiduciary or agent, in each case
for investment, and not with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act, subject to any
requirement of law that the disposition of its property or the property of such
investor account or accounts be at all times within its or their control and
subject to its or their ability to resell Notes pursuant to Rule 144A,
Regulation S or any exemption from registration available under the Securities
Act. It agrees on its own behalf and on behalf of any investor account for which
it is purchasing the Notes, and each subsequent holder of the Notes by its
acceptance thereof will agree, to offer, sell or otherwise transfer such Notes
prior to (x) the date which is two years (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) after the later of the date of the original issue of the Notes and
the last date on which the Issuer or any affiliate of the Issuer was the owner
of such Notes (or any predecessor thereto) or (y) such later date, if any, as
may be required by applicable law (the "Resale Restriction Termination Date")
only (a) to the Issuer or any of its subsidiaries, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) for so long as the Notes are eligible for resale pursuant to Rule 144A,
to a person it 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 transfer is being
made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S.
persons that occur outside the United States within the meaning of Regulation S
under the Securities Act or (e) pursuant to any other available exemption from
the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of its property
or the property of such investor account or accounts be at all times within its
or their control and to compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. Each purchaser acknowledges that the Issuer and
the Trustee reserve the right prior to any offer, sale or other transfer prior
to the Resale Restriction Termination Date of the Notes pursuant to clauses (d)
or (e) above to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to the Issuer and the Trustee. Each
purchaser acknowledges that each Note will contain a legend substantially to the
following effect:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE
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140
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES
THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF OR THE LAST DAY ON WHICH THE ISSUER
OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT 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) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT THE ISSUER AND THE TRUSTEE SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION" AND THE "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
It acknowledges that the foregoing restrictions apply to
holders of beneficial interest in the Notes, as well as to holders of
the Notes.
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5. It acknowledges that the Trustee will not be required to accept for
registration of transfer any Notes acquired by it, except upon presentation of
evidence satisfactory to the Issuer and the Trustee that the restrictions set
forth herein have been complied with.
6. It acknowledges that Issuer, the Initial Purchasers and others will
rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements and agrees that if any of the acknowledgments,
representations or agreements deemed to have been made by its purchase of the
Notes are no longer accurate, it shall promptly notify the Issuer, the Trustee
and the Initial Purchasers. If it is acquiring the Notes as a fiduciary or agent
for one or more investor accounts, it represents that it has sole investment
discretion with respect to each such account and it has full power to make the
foregoing acknowledgments, representations and agreements on behalf of each
account, and that each such investor account is eligible to purchase the Notes.
7. It agrees that it will give to each person to whom it transfers
Notes notice of any restrictions or transfer of such Notes.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
Date:
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
By:
Address:
C-4
142
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
Chase Manhattan Trust Company,
National Association
One Liberty Plaza
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust Department
Re: CapRock Communications Corp. ("Issuer") 11 1/2% Senior Notes
due 2009 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_______________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a)(2) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
143
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities;
(6) if the circumstances set forth in Rule 904(b) under the Securities
Act are applicable, we have complied with the additional conditions therein,
including (if applicable) sending a confirmation or other notice stating that
the Securities may be offered and sold during the restricted period specified in
Rule 903(b) in accordance with the provisions of Regulation S; pursuant to
registration of the Securities under the Securities Act; or pursuant to an
available exemption from the registration requirements under the Securities Act;
and
(7) if the sale is made during a restricted period and the provisions
of Rule 903(b) are applicable thereto, we confirm that such sale has been made
in accordance with such provisions.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
Name of Transferor
By:
-----------------------------
Authorized Signature
D-2
