Exhibit 4.7
7 3/4% Senior Subordinated Notes due December 15, 2012
CUSIP No. $
XXXXXXXXXX COMMUNICATIONS COMPANY
promises to pay to _______________________ or registered assigns, the principal
sum of _______________________________________________ Dollars on December 15,
2012.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Dated: ________________, 2002
XXXXXXXXXX COMMUNICATIONS COMPANY
BY:
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
BY:
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
Legal and Strategic Affairs
(SEAL)
This is one of the Notes referred
to in the within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
BY:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
7 3/4% Senior Subordinated Notes due December 15, 2012
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except 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 or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("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 such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be 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.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN
RULE 501 (a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED
INVESTOR'), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
XXXXXXXXXX COMMUNICATIONS COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF XXXXXXXXXX
COMMUNICATIONS COMPANY SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Xxxxxxxxxx Communications Company, a Delaware corporation
("ACC" or the "Company"), promises to pay interest on the principal amount of
this Note at the rate of 7 3/4% per annum from December 20, 2002 until maturity
(including any additional interest required to be paid pursuant to the
provisions of the Registration Rights Agreement). ACC will pay interest
semi-annually on June 15 and December 15 of each year, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date, and; provided, further,
that the first Interest Payment Date shall be June 15, 2003. ACC shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; ACC
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. Method of Payment. ACC will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the June 1 or December 1 next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.13 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium and interest at the office or agency of ACC maintained for
such purpose within or without the City and State of New York, or, at the option
of ACC, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest and premium on, all Global Notes and all other Notes
the Holders of $5,000,000 or more in aggregate principal amount of which shall
have provided wire transfer instructions to ACC or the Paying Agent. Such
payment shall be 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.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. ACC may change any Paying Agent or Registrar without notice to any
Holder. ACC or any of its Restricted Subsidiaries may act in any such capacity.
4. Indenture. ACC issued the Notes under an Indenture dated as of
December 20, 2002 (the "Indenture") between ACC and the Trustee. ACC shall be
entitled to issue Additional Notes (as defined in the Indenture) pursuant to
Section 2.14 of the Indenture. The terms of the Notes include those stated in
the Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Notes are subject to all such terms and Holders are referred to the
Indenture and the TIA for a statement of such terms. The Notes are general
senior subordinated obligations of ACC.
5. Subordination. The payment of principal of, premium, if any, and
interest on the Notes shall be subordinated in right of payment as set forth in
the Indenture, to the prior payment in full of all Senior Debt, whether
outstanding on the date of the Indenture or thereafter incurred.
6. Optional Redemption.
(a) Except as set forth in subparagraphs (b) and (c) below of this
Paragraph 6, ACC shall not have the option to redeem the Notes prior to December
15, 2007. Thereafter, ACC shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, if any, to the applicable date of
redemption, if redeemed during the twelve-month period beginning on December 15
of the years indicated below:
Year Percentage
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2007.......................................... 103.875%
2008.......................................... 102.583%
2009.......................................... 101.292%
2010 and thereafter........................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph
6, at any time on or prior to December 15, 2005, ACC shall have the option to
redeem up to 35% of the aggregate principal amount of the Notes, including the
original principal amount of any Additional Notes, issued on the Issuance Date
at a redemption price equal to 107.750% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the applicable
date of redemption, with the net proceeds of one or more public offerings of ACC
Common Stock; provided that at least 65% of the aggregate principal amount of
the Notes, including the original principal amount of any Additional Notes,
issued on the Issuance Date remains outstanding immediately after the occurrence
of such redemption and; provided further, that each such redemption shall occur
within 60 days of the date of the closing of the applicable public offering.
(c) At any time prior to December 15, 2005, upon a Change of Control, ACC
shall have the option to redeem the Notes, in whole or in part, upon not less
than 30 days' notice, within 180 days of such Change of Control, at a redemption
price equal to the sum of (i) the principal amount thereof, plus (ii) accrued
and unpaid interest thereon, if any, to the applicable date of redemption, plus
(iii) the Applicable Premium.
7. Mandatory Redemption.
ACC shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
8. Repurchase at the Option of Holder.
(a) If there is a Change of Control, unless irrevocable notice of
redemption for all of the Notes is given within 30 days after the occurrence of
such Change of Control in accordance with the provisions of Article Three of the
Indenture, ACC shall be required to make an offer (a "Change of Control Offer")
to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of each Holder's Notes at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the date of
purchase (the "Change of Control Payment"). On the last Business Day of the
fiscal quarter of ACC next following the occurrence of a Change of Control, ACC
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture. Prior to the commencement
of a Change of Control Offer, but in any event within 90 days after the
occurrence of a Change of Control, ACC shall (a) to the extent then required to
be repaid, repay in full all outstanding Senior Debt, or (b) obtain the
requisite consents, if any, under agreements governing all such Senior Debt to
permit the redemption of Notes as provided for in Section 4.15 of the Indenture.
ACC shall first comply with the requirements of the preceding sentence before it
shall be required to repurchase Notes pursuant to Section 4.15 of the Indenture.
(b) If ACC or a Restricted Subsidiary consummates any Asset Sales, within
five Business Days of each date on which the aggregate amount of Excess Proceeds
exceeds $5.0 million, ACC shall commence an offer to all Holders of Notes and
all holders of Pari Passu Debt (an "Asset Sale Offer") pursuant to Section 3.10
of the Indenture to purchase the maximum principal amount of Notes and any Pari
Passu Debt that may be purchased out of the Excess Proceeds, at an offer price
in cash in an amount equal to 100% of the principal amount (or accreted value,
as applicable) thereof, plus accrued and unpaid interest thereon, if any, to the
date of purchase, in accordance with the procedures set forth in the Indenture
and the agreements governing such Pari Passu Debt, as applicable. To the extent
that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, ACC (or such Restricted
Subsidiary, as the case may be) may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes and Pari
Passu Debt surrendered by the holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and Pari Passu Debt to be purchased
on a pro rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from ACC prior to any related purchase
date and may elect to have such Notes purchased by completing the form titled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
9. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date, interest ceases to accrue on Notes or portions
thereof called for redemption.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and ACC may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. ACC need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, ACC need not exchange or register the transfer of
any Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest Payment
Date.
11. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of ACC's obligations to Holders of the Notes in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the TIA.
13. Defaults and Remedies. Events of Default include: (i) the failure by
ACC to pay interest on any of the Notes when the same becomes due and payable
and the continuance of any such failure for 30 days (whether or not prohibited
by Article 10 of the Indenture); (ii) the failure by ACC to pay principal of or
premium, if any, on any of the Notes when and as the same shall become due and
payable at maturity, upon acceleration,
optional or mandatory redemption, required repurchase or otherwise (whether or
not prohibited by Article 10 of the Indenture); (iii) the failure by ACC to
comply with any of the provisions of Sections 4.07, 4.09 or 5.01 of the
Indenture and continuance of such failure for 30 days after written notice is
given to ACC by the Trustee or to ACC and the Trustee by the Holders of 25% in
aggregate principal amount of the Notes then outstanding; (iv) the failure by
ACC to comply with any of its other agreements or covenants in the Notes or the
Indenture and continuance of such failure for 60 days after written notice is
given to ACC by the Trustee or to ACC and the Trustee by the Holders of 25% in
aggregate principal amount of the Notes then outstanding; (v) an event of
default occurs under any mortgage, indenture or other instrument governing any
Debt of ACC or any of its Restricted Subsidiaries for borrowed money, whether
such Debt now exists or shall hereafter be created, if (a) such event of default
results from the failure to pay at maturity $5.0 million or more in principal
amount of such Debt or (b) as a result of such event of default the maturity of
$5.0 million or more in principal amount of such Debt has been accelerated prior
to its stated maturity; (vi) any final judgments aggregating $5.0 million or
more are rendered against ACC or any of its Restricted Subsidiaries that remain
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days; (vii) certain events of bankruptcy, insolvency or
reorganization of ACC or any of its Restricted Subsidiaries; and (viii) the
failure by ACC to redeem the 9 3/4% Debentures within 60 days of the Issuance
Date. The Trustee must, within 90 days after the occurrence of a Default or
Event of Default, give to the Holders notice of all uncured Defaults or Events
of Default known to it; provided that, except in the case of a Default or Event
of Default in payment on any Note, the Trustee may withhold such notice if a
committee of its Responsible Officers in good faith determines that the
withholding of such notice is in the interest of the Holders. ACC is required to
furnish annually to the Trustee a certificate as to its compliance with the
terms of the Indenture.
14. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for ACC or its Affiliates, and may otherwise deal with ACC or its Affiliates, as
if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator, stockholder or Affiliate of ACC, as such, shall not have any
liability for any obligations of ACC under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set forth
in the A/B Exchange Registration Rights Agreement dated as of December 20, 2002
between ACC and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, ACC has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to the Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
ACC will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:
Xxxxxxxxxx Communications Company
000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint____________________________________________________ to
transfer this Note on the books of ACC. The agent may substitute another to act
for him.
Date: ______________________
Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by ACC pursuant to Section
4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by ACC
pursuant to Section 4. 10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased: $_______
Date: ____________ Your Signature:
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(Sign exactly as your name appears on
the Note)
Tax Identification No.: _____________________________
Signature Guarantee.
SCHEDULE OF EXCHANGES AND TRANSFERS
The following decreases/increases in the principal amount evidenced by this
Note have been made:
Amount of Amount of Principal Amount
decrease in increase in of this Global Signature of
Date of Principal Principal Note following authorized officer
Exchange/ Amount of Amount of such decrease of Trustee or
Transfer this Global Note this Global Note or increase Note Custodian
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