CONFORMED COPY
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RSL COMMUNICATIONS PLC
As Issuer
RSL COMMUNICATIONS, LTD.
As Guarantor
TO
THE CHASE MANHATTAN BANK
As Trustee
---------
Indenture
Dated as of November 9, 1998
---------
12% SENIOR NOTES DUE 2008
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Certain Sections of this Indenture relating to
Sections 3.10 through 3.18 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
----------- -------
ss. 3.10 (a)(1) ................................. 609
(a)(2) ................................ 609
(a)(3) ................................ Not
Applicable
(a)(4) ................................ Not
Applicable
(b) ................................ 6.08
................................. 6.10
ss. 3.11 (a) ................................ 6.13
(b) ................................ 6.13
ss. 3.12 (a) ................................ 7.01
................................ 7.02(a)
(b) ................................ 7.02(b)
(c) ................................ 7.02(c)
ss. 3.13 (a) ................................ 7.03(a)
(a)(4) ................................ 7.03(a)
(b) ................................ 7.03(a)
(c) ................................ 7.03(a)
(d) ................................ 7.03(b)
ss. 3.14 (a) ................................ 7.04
10.18
(b) ................................ Not
................................ Applicable
(c)(1) ................................ 1.02
(c)(2) ................................ 1.02
(c)(3) ................................ Not
................................ Applicable
(d) ................................ Not
................................ Applicable
(e) ................................ 1.02
ss. 3.15 (a) ................................ 6.01
(b) ................................ 6.02
(c) ................................ 6.01
(d) ................................ 6.01
(e) ................................ 5.14
---------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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Trust Indenture Indenture
Act Section Section
----------- -------
ss. 3.16 (a)(1)(A) ................................ 5.02
................................ 5.12
(a)(1)(B) ................................ 5.13
(a)(2) ................................ Not
................................ Applicable
(b) ................................ 5.08
(c) ................................ 1.04
ss. 3.17 (a)(1) ................................ 5.03
(a)(2) ................................ 5.04
(b) ................................ 10.03
ss. 3.18 (a) ................................ 1.07
---------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
-ii-
TABLE OF CONTENTS
Page
Parties...................................................................1
Recitals of the Issuer ...................................................1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions ............................................2
Accreted Value...................................................2
Acquired Debt....................................................4
Act .............................................................4
Additional Amounts...............................................4
Affiliate........................................................4
Agent Member.....................................................4
Applicable Procedures............................................4
Asset Disposition................................................4
Average Life.....................................................5
beneficial interest..............................................5
Board of Directors...............................................5
Board Resolution.................................................5
Book-Entry Depositary............................................5
Business Day.....................................................5
Capital Lease Obligation.........................................6
Capital Stock....................................................6
Cedel............................................................6
Change of Control................................................6
Commission.......................................................6
Common Stock.....................................................6
Consolidated Cash Flow Available for Fixed Charges...............6
Consolidated Income Tax Expense..................................7
Consolidated Interest Expense....................................7
Consolidated Net Income..........................................8
Consolidated Net Worth...........................................8
Consolidated Tangible Assets.....................................8
Corporate Trust Office...........................................8
corporation......................................................9
Credit Facility..................................................9
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-iii-
Page
Debt.............................................................9
Defaulted Interest..............................................10
Definitive Security.............................................10
Deposit Agreement...............................................10
Depositary......................................................10
Depositary Interest.............................................10
Disqualified Stock..............................................10
Eligible Institution............................................11
Euroclear.......................................................11
Event of Default................................................11
Exchange Act....................................................11
Exchange and Registration Rights Agreement......................11
Exchange Offer..................................................11
Exchange Offer Registration Statement...........................11
Exchange Security...............................................11
Existing Stockholders...........................................12
Expiration Date.................................................12
Global Security.................................................12
Government Securities...........................................12
Guarantee.......................................................12
Guarantor.......................................................12
Holder..........................................................13
Incremental Paid-in Capital.....................................13
Incur...........................................................13
Indenture.......................................................13
Indirect Participant............................................13
Initial Purchaser...............................................13
Interest Payment Date...........................................14
Interest Rate or Currency Protection Agreement..................14
Investment......................................................14
Issuer..........................................................15
"Issuer Request" or "Issuer Order"..............................15
Lien............................................................15
Listing Failure.................................................15
Marketable Securities...........................................15
Maturity........................................................16
Net Available Proceeds..........................................16
Offer to Purchase...............................................16
Officers' Certificate...........................................19
Opinion of Counsel..............................................19
Original Securities.............................................19
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
Outstanding.....................................................20
Participant.....................................................21
Paying Agent....................................................21
Permitted Interest Rate or Currency Protection
Agreement...................................................21
Permitted Investment............................................21
Permitted Liens.................................................21
Person..........................................................22
Predecessor Security............................................22
Purchase Agreement..............................................23
Purchase Money Debt.............................................23
readily marketable cash equivalents.............................23
Receivables.....................................................23
Receivables Sale................................................23
Redemption Date.................................................24
Redemption Price................................................24
Registered Securities...........................................24
Regular Record Date.............................................24
Regulation S....................................................24
Regulation S Certificate........................................24
Regulation S Global Security....................................24
Regulation S Legend.............................................24
Regulation S Securities.........................................24
Related Person..................................................24
Resale Registration Statement...................................25
Responsible Officer.............................................25
Restricted Global Security......................................25
Restricted Period...............................................25
Restricted Securities...........................................25
Restricted Securities Certificate...............................25
Restricted Securities Legend....................................25
Restricted Subsidiary...........................................26
RSLNA...........................................................26
Rule 144A.......................................................26
Rule 144A Securities............................................26
Securities......................................................26
Securities Act..................................................26
Securities Act Legend...........................................26
Securities Guarantee............................................26
"Security Register" and "Security Registrar"....................26
Significant Subsidiary..........................................26
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
Special Interest................................................26
Special Record Date.............................................26
Stated Maturity.................................................27
Step-Down Date..................................................27
Step-Up.........................................................27
Strategic Investor..............................................27
Subordinated Debt...............................................27
Subsidiary......................................................28
Subsidiary Guarantor............................................28
Substitute Securities...........................................29
Successor Security..............................................29
Tax ............................................................29
Taxing Authority................................................29
Telecommunications Assets.......................................29
Telecommunications Business.....................................29
Trustee.........................................................29
Trust Indenture Act.............................................30
Unrestricted Securities Certificate.............................30
Unrestricted Subsidiary.........................................30
Vice President..................................................30
Voting Stock....................................................31
Wholly Owned Subsidiary.........................................31
SECTION 1.02. Compliance Certificates and Opinions......................31
SECTION 1.03. Form of Documents Delivered to Trustee....................32
SECTION 1.04. Acts of Holders; Record Dates.............................32
SECTION 1.05. Notices, Etc., to Trustee, Issuer and
Guarantor..................................35
SECTION 1.06. Notice to Holders; Waiver.................................36
SECTION 1.07. Application of Trust Indenture Act........................36
SECTION 1.08. Effect of Headings and Table of
Contents....................................37
SECTION 1.09. Successors and Assigns....................................37
SECTION 1.10. Separability Clause.......................................37
SECTION 1.11. Benefits of Indenture.....................................37
SECTION 1.12. Governing Law ...........................................37
SECTION 1.13. Legal Holidays ...........................................37
SECTION 1.14. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities.........37
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally...........................................38
SECTION 2.02. Form of Face of Security..................................40
SECTION 2.03. Form of Reverse of Security...............................46
SECTION 2.04. Form of Trustee's Certificate of
Authentication.............................51
ARTICLE III
The Securities
SECTION 3.01. Title and Terms...........................................51
SECTION 3.02. Denominations ...........................................53
SECTION 3.03. Execution, Authentication, Delivery and
Dating.....................................53
SECTION 3.04. Temporary Securities......................................54
SECTION 3.05. Registration, Registration of Transfer
and Exchange...............................55
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.................................62
SECTION 3.07. Payment of Interest; Interest
Rights Preserved...........................63
SECTION 3.08. Persons Deemed Owners.....................................64
SECTION 3.09. Cancelation ...........................................65
SECTION 3.10. Computation of Interest...................................65
SECTION 3.11. CUSIP and ISIN Numbers....................................65
ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee ...........................................66
SECTION 4.02. Obligations Unconditional.................................68
SECTION 4.03. Notice to Trustee.........................................68
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
ARTICLE V
Remedies
SECTION 5.01. Events of Default.........................................68
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment..................................71
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.....................72
SECTION 5.04. Trustee May File Proofs of Claim..........................73
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities...................73
SECTION 5.06. Application of Money Collected............................74
SECTION 5.07. Limitation on Suits.......................................74
SECTION 5.08. Unconditional Right of Holders To
Receive Principal, Premium and
Interest...................................75
SECTION 5.09. Restoration of Rights and Remedies........................75
SECTION 5.10. Rights and Remedies Cumulative............................75
SECTION 5.11. Delay or Omission Not Waiver..............................76
SECTION 5.12. Control by Holders........................................76
SECTION 5.13. Waiver of Past Defaults...................................76
SECTION 5.14. Undertaking for Costs.....................................77
SECTION 5.15. Waiver of Stay or Extension Laws..........................77
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities.......................78
SECTION 6.02. Notice of Defaults........................................79
SECTION 6.03. Certain Rights of Trustee.................................79
SECTION 6.04. Not Responsible for Recitals
or Issuance of Securities..................81
SECTION 6.05. May Hold Securities.......................................81
SECTION 6.06. Money Held in Trust.......................................81
SECTION 6.07. Compensation and Reimbursement............................81
SECTION 6.08. Disqualification; Conflicting Interests...................82
SECTION 6.09. Corporate Trustee Required; Eligibility...................83
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-viii-
Page
SECTION 6.10. Resignation and Removal; Appointment of
Successor..................................83
SECTION 6.11. Acceptance of Appointment by Successor....................85
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.....................85
SECTION 6.13. Preferential Collection of Claims
Against Issuer or Guarantor................85
SECTION 6.14. Appointment of Authenticating Agent.......................86
SECTION 6.15. Withholding Taxes.........................................88
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and
Addresses of Holder........................88
SECTION 7.02. Preservation of Information;
Communications to Holders..................89
SECTION 7.03. Reports by Trustee........................................89
SECTION 7.04. Reports by Issuer and Guarantor...........................90
SECTION 7.05. Officers' Certificate with Respect to
Change in Interest Rates...................90
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain
Sales of Assets............................90
SECTION 8.02. Successor Substituted.....................................92
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent
of Holders.................................92
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
SECTION 9.02. Supplemental Indentures with Consent of
Holders....................................93
SECTION 9.03. Execution of Supplemental Indentures......................94
SECTION 9.04. Effect of Supplemental Indentures.........................94
SECTION 9.05. Conformity with Trust Indenture Act.......................94
SECTION 9.06. Reference in Securities to Supplemental
Indentures.................................95
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and
Interest...................................95
SECTION 10.02. Maintenance of Office or Agency..........................95
SECTION 10.03. Money for Security Payments To Be Held
in Trust...................................96
SECTION 10.04. Existence................................................97
SECTION 10.05. Maintenance of Properties................................98
SECTION 10.06. Payment of Taxes and Other Claims........................98
SECTION 10.07. Maintenance of Insurance.................................98
SECTION 10.08. Limitation on Consolidated Debt..........................98
SECTION 10.09. Additional Amounts......................................101
SECTION 10.10. Limitation on Restricted Payments.......................104
SECTION 10.11. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries..............................107
SECTION 10.12. Limitation on Transactions with
Affiliates and Related Persons............108
SECTION 10.13. Limitation on Asset Dispositions........................109
SECTION 10.14. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries..........110
SECTION 10.15. Limitation on Liens.....................................111
SECTION 10.16. Limitation on Issuance of Guarantees of
Debt by Restricted Subsidiaries...........112
SECTION 10.17. Change of Control.......................................112
SECTION 10.18. Provision of Financial Information......................114
SECTION 10.19. Statement by Officers as to Default.....................114
SECTION 10.20. Waiver of Certain Covenants.............................115
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-x-
Page
SECTION 10.21. Paying Agent ..........................................115
SECTION 10.22. Internal Revenue Service Filing.........................115
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption.....................................115
SECTION 11.02. Applicability of Article................................117
SECTION 11.03. Election To Redeem; Notice to Trustee...................117
SECTION 11.04. Securities To Be Redeemed Pro Rata......................117
SECTION 11.05. Notice of Redemption....................................118
SECTION 11.06. Deposit of Redemption Price.............................119
SECTION 11.07. Securities Payable on Redemption Date...................119
SECTION 11.08. Securities Redeemed in Part.............................119
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations.....................120
SECTION 12.02. Defeasance and Discharge of Indenture...................121
SECTION 12.03. Defeasance of Certain Obligations.......................124
SECTION 12.04. Application of Trust Money..............................126
SECTION 12.05. Repayment to Issuer.....................................126
SECTION 12.06. Reinstatement ..........................................127
SECTION 12.07. Insiders ..........................................127
TESTIMONIUM.............................................................128
SIGNATURES AND SEALS....................................................128
ANNEX A -- Form of Regulation S Certificate
ANNEX B -- Form of Restricted Securities Certificate
ANNEX C -- Form of Unrestricted Securities Certificate
---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-xi-
INDENTURE, dated as of November 9, 1998, between RSL
COMMUNICATIONS PLC, a United Kingdom corporation, as issuer (the "Issuer"),
having its principal office at Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx, Xxxxxxx XX0 0XX, XXX COMMUNICATIONS, LTD., a Bermuda corporation, as
guarantor (the "Guarantor"), having its principal office at Xxxxxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxxxx XX CX, Bermuda, and THE CHASE MANHATTAN BANK, a
corporation duly organized and existing under the laws of the State of New
York, as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of $100,000,000
aggregate principal amount at maturity of the Issuer's 12% Senior Notes due
2008 (the "Securities") 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. The Securities may consist of Original
Securities and/or Exchange Securities, each as defined herein. The Original
Securities and the Exchange Securities shall rank pari passu with one another
and shall together constitute a single class of securities.
All things necessary (i) to make the Securities, when
executed by the Issuer and authenticated and delivered hereunder and duly
issued by the Issuer, the valid obligations of the Issuer, (ii) to make the
Securities Guarantee, when executed and delivered by the Guarantor hereunder,
the valid obligation of the Guarantor, and (iii) to make this Indenture a
valid agreement of the Issuer and the Guarantor, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and
-1-
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
-2-
SECTION 1.01. Definitions. 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 generally accepted
accounting principles (whether or not such is indicated herein) and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted as consistently applied by the Issuer or
the Guarantor, as applicable, at the date hereof; and
(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.
Certain terms, used principally in Article Six, are defined
in that Article.
"Accreted Value" is defined to mean, for any "Specified
Date", the amount calculated pursuant to clauses (i), (ii), (iii) or (iv)
below for each $1,000 principal amount at maturity of Securities:
(i) if the Specified Date occurs on one or more of the
following dates (each a "Semiannual Accrual Date"), the Accreted
Value will equal the amount set forth below for such Semiannual
Accrual Date:
Semiannual Accreted
Accrual Date Value
------------ --------
May 1, 1999 $ 946.33
November 1, 1999 947.84
May 1, 2000 949.45
November 1, 2000 951.16
-3-
Semiannual Accreted
Accrual Date Value
------------ --------
May 1, 2001........................................ 952.99
November 1, 2001................................... 954.93
May 1, 2002........................................ 957.00
November 1, 2002................................... 959.21
May 1, 2003........................................ 961.55
November 1, 2003................................... 964.06
May 1, 2004........................................ 966.72
November 1, 2004................................... 969.56
May 1, 2005........................................ 972.58
November 1, 2005................................... 975.79
May 1, 2006........................................ 979.22
November 1, 2006................................... 982.87
May 1, 2007........................................ 986.76
November 1, 2007................................... 990.90
May 1, 2008........................................ 995.31
November 1, 2008................................... $ 1,000.00
(i) if the Specified Date occurs before the first Semiannual
Accrual Date, the Accreted Value will equal the sum of (a) $944.89;
and (b) an amount equal to the product of (x) the Accreted Value for
the first Semiannual Accrual Date less $944.89 multiplied by (y) a
fraction, the numerator of which is the number of days from the issue
date of the Securities to the Specified Date, using a 360-day year of
twelve 30-day months, and the denominator of which is the number of
days elapsed from the issue date of the Securities to the first
Semiannual Accrual Date, using a 360-day year of twelve 30-day
months;
(ii) if the Specified Date occurs between two Semiannual
Accrual Dates, the Accreted Value will equal the sum of (a) the
Accreted Value for the Semiannual Accrual Date immediately preceding
such Specified Date and (b) an amount equal to the product of (x) the
Accreted Value for the immediately following Semiannual Accrual Date
less the Accreted Value for the immediately preceding Semiannual
Accrual Date multiplied by (y) a fraction, the numerator of which is
the number of days from the immediately preceding Semiannual Accrual
Date to the Specified Date, using a 360-day year of twelve 30-day
months, and the denominator of which is 180; or
(iii) if the Specified Date occurs after the last Semiannual
Accrual Date, the Accreted Value will equal $1,000.
-4-
"Acquired Debt" means, with respect to any specified
Person, (i) Debt of any other Person existing at the time such Person merges
with or into or consolidates with or becomes a Subsidiary of such specified
Person and (ii) Debt secured by a Lien encumbering any asset acquired by such
specified Person, which Debt was not Incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.
"Act", when used with respect to any Holder, has the
meaning specified in Section 1.04.
"Additional Amounts" has the meaning specified in Section
10.09.
"Affiliate" of any Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in,
the Depositary.
"Applicable Procedures" means, with respect to any transfer
or transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect
from time to time.
"Asset Disposition" by any Person means any transfer,
conveyance, sale, lease or other disposition by such Person or any of its
Subsidiaries (including a consolidation or merger or other sale of any such
Subsidiary with, into or to another Person in a transaction in which such
Subsidiary ceases to be a Subsidiary of the specified Person, but excluding a
disposition by a Subsidiary of such Person to such Person or a Wholly Owned
Subsidiary of such Person or by such Person to a Wholly Owned Subsidiary of
such Person or by a Restricted Subsidiary to the Guarantor or a Restricted
Subsidiary or by the Guarantor to a Restricted Subsidiary) of (i) shares of
Capital Stock or other ownership interests of a Subsidiary of such Person;
(ii) substantially all of the assets of such Person or any
-5-
of its Subsidiaries representing a division or line of business (other than
as part of a Permitted Investment); or (iii) other assets or rights of such
Person or any of its Subsidiaries outside of the ordinary course of
business, provided in the case of each of the preceding clauses (i), (ii)
and (iii) that the aggregate consideration for such transfer, conveyance,
sale, lease or other disposition is equal to $2.0 million or more in any
12-month period.
"Average Life" means, at any date of determination with
respect to any Debt, 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 and (b) the
amount of such principal payment by (ii) the sum of all such principal
payments.
"beneficial interest" means an indirect beneficial interest
in a Global Security held through a corresponding Depositary Interest and
shown on, and transferred only through, records maintained in book-entry form
by the Depositary (with respect to the Participants) and their Participants.
"Board of Directors" means either the board of directors of
the Guarantor or the Issuer, as applicable, or any duly authorized committee
of that board duly authorized to act with respect to this Indenture from time
to time.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Guarantor or the Issuer, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Depositary" means The Chase Manhattan Bank in
its capacity as book-entry depositary pursuant to the terms of the Deposit
Agreement, until a successor Book-Entry Depositary shall have become such
pursuant to the terms of the Deposit Agreement, and thereafter "Book-Entry
Depositary" shall mean such successor Book-Entry Depositary.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
Borough of Manhattan, the City of New York, New York are authorized or
obligated by law or executive order to close.
-6-
"Capital Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a lease of (or other
Debt arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a capital
lease or a liability on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles (a "Capital Lease").
The stated maturity of such obligation shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
The principal amount of such obligation shall be the capitalized amount
thereof that would appear on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"Cedel" means Cedel Bank, S.A. (or any successor
securities clearing agency).
"Change of Control" has the meaning specified in Section
10.17.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing or not performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" for
any period means the Consolidated Net Income of the Guarantor and its
Restricted Subsidiaries for such period increased by the sum of (i)
Consolidated Interest Expense of the Guarantor and its Restricted Subsidiaries
for such
-7-
period, plus (ii) Consolidated Income Tax Expense of the Guarantor and its
Restricted Subsidiaries for such period, plus (iii) the consolidated
depreciation and amortization expense included in the income statement of
the Guarantor and its Restricted Subsidiaries for such period, plus (iv) any
noncash expense related to the issuance to employees of the Guarantor or any
Restricted Subsidiary of the Guarantor of options to purchase Capital Stock
of the Guarantor or such Restricted Subsidiary, plus (v) any charge related
to any premium or penalty paid in connection with redeeming or retiring any
Debt prior to its stated maturity; provided, however, that there shall be
excluded therefrom the Consolidated Cash Flow Available for Fixed Charges
(if positive) of any Restricted Subsidiary of the Guarantor (calculated
separately for such Restricted Subsidiary in the same manner as provided
above for the Guarantor) that is subject to a restriction which prevents the
payment of dividends or the making of distributions to the Guarantor or
another Restricted Subsidiary of the Guarantor to the extent of such
restriction.
"Consolidated Income Tax Expense" for any period means the
aggregate amounts of the provisions for income taxes of the Guarantor and its
Restricted Subsidiaries for such period calculated on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the
interest expense included in a consolidated income statement (excluding
interest income) of the Guarantor and its Restricted Subsidiaries for such
period in accordance with generally accepted accounting principles, including
without limitation or duplication (or, to the extent not so included, with the
addition of), (i) the amortization of Debt discounts; (ii) any payments or
fees with respect to letters of credit, bankers' acceptances or similar
facilities; (iii) fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements; (iv)
Preferred Stock dividends of the Guarantor and its Restricted Subsidiaries
(other than dividends paid in shares of Preferred Stock that is not
Disqualified Stock) declared and paid or payable; (v) accrued Disqualified
Stock dividends of the Guarantor and its Restricted Subsidiaries, whether or
not declared or paid; (vi) interest on Debt guaranteed by the Guarantor and
its Restricted Subsidiaries (but only to the extent such interest is actually
paid by the Guarantor or a Restricted Subsidiary); and (vii) the portion of
any Capital Lease Obligation paid during such period that is allocable to
interest expense; excluding, however, any premiums, fees and expenses (and any
amortization thereof) payable in connection with the offerings of the
Securities; all of the
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foregoing as determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with generally accepted accounting
principles.
"Consolidated Net Income" for any period means the net
income (or loss) of the Guarantor and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) the net income (or loss) of any Person acquired by the Guarantor
or a Restricted Subsidiary of the Guarantor in a pooling-of-interests
transaction for any period prior to the date of such transaction, (b) the net
income (or loss) of any Person that is not a Restricted Subsidiary of the
Guarantor except to the extent of the amount of dividends or other
distributions actually paid to the Guarantor or a Restricted Subsidiary of the
Guarantor by such Person during such period, (c) gains or losses on Asset
Dispositions by the Guarantor or its Restricted Subsidiaries, (d) all
extraordinary gains and extraordinary losses, determined in accordance with
generally accepted accounting principles, (e) the cumulative effect of changes
in accounting principles, (f) noncash gains or losses resulting from
fluctuations in currency exchange rates and (g) the tax effect of any of the
items described in clauses (a) through (f) above.
"Consolidated Net Worth" of any Person means the
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Disqualified Stock of such Person.
"Consolidated Tangible Assets" of any Person means the
total amount of assets (less applicable reserves and other properly deductible
items) which under generally accepted accounting principles would be included
on a consolidated balance sheet of such Person and its Subsidiaries after
deducting therefrom all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which in
each case under generally accepted accounting principles would be included on
such consolidated balance sheet.
"Corporate Trust Office" means the principal office of the
Trustee in the Borough of Manhattan, The City of New York, New York, at which
at any particular time its corporate trust business shall be administered,
which at the date hereof is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000-0000.
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"corporation" means a corporation, association, company,
limited liability company, joint-stock company or business trust.
"Credit Facility" means credit agreements, vendor
financings or other facilities or arrangements made available from time to
time to the Guarantor and its Restricted Subsidiaries by banks, other
financial institutions and/or equipment manufacturers for the Incurrence of
Debt, including the private or public issuance of debt securities or the
provision of letters of credit and any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith, as the
same may be amended, supplemented, modified or restated from time to time.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, the amount of (i) every obligation of such
Person for money borrowed, (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not overdue
or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) all Receivables Sales of such Person, together
with any obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, (vii) all obligations to redeem Disqualified Stock issued by such
Person, (viii) every obligation under Interest Rate and Currency Protection
Agreements of such Person and (ix) every obligation of the type referred to in
clauses (i) through (viii) of another Person and all dividends of another
Person the payment of which, in either case, such Person has Guaranteed to the
extent the same is Guaranteed by such Person. The "amount" or "principal
amount" of Debt at any time of determination as used herein represented by (a)
any Debt issued at a price that is less than the principal amount at maturity
thereof, shall be the amount of the liability in respect thereof determined in
accordance with generally accepted accounting principles, (b) any
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Receivables Sale shall be the amount of the unrecovered capital or principal
investment of the purchaser (other than the Guarantor or a Wholly Owned
Restricted Subsidiary of the Guarantor) thereof to the extent such Person is
liable therefor, excluding amounts representative of yield or interest
earned on such investment or (c) any Disqualified Stock shall be the maximum
fixed redemption or repurchase price in respect thereof.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Definitive Security" means a certificated Security
registered in the name of the Holder thereof and issued in accordance with
Section 3.05(d) hereof.
"Deposit Agreement" means the Note Deposit Agreement, dated
as of the date hereof, between the Issuer and The Chase Manhattan Bank, as
Book-Entry Depositary with respect to the Global Securities, as amended from
time to time in accordance with the terms thereof.
"Depositary" means, with respect to the Securities issuable
or issued in whole or in part in the form of one or more Global Securities,
The Depository Trust Company for so long as it shall be a clearing agency
registered under the Exchange Act, or such successor as the Issuer shall
designate from time to time in an Officers' Certificate delivered to the
Trustee.
"Depositary Interest" means a certificateless depositary
interest representing a 100% beneficial interest in a Global Security.
"Disqualified Stock" of any Person means any Capital Stock
of such Person which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Subsidiary of such Person or the holder thereof, in whole or in part, on or
prior to the final Stated Maturity of the Securities; provided, however, that
any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Preferred Stock upon the occurrence of a Change of
Control occurring prior to the final maturity of the Securities shall not
constitute Disqualified Stock if the change of control provisions applicable
to such Preferred
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Stock are no more favorable to the holders of such Preferred Stock than the
provisions applicable to the Securities contained in Section 10.17 and such
Preferred Stock specifically provides that such Person will not repurchase
or redeem any such stock pursuant to such provisions prior to such Person's
repurchase of such Securities as are required to be repurchased pursuant to
Section 10.17.
"Eligible Institution" means a commercial banking
institution that has combined capital and surplus of not less than $500
million or its equivalent in foreign currency, whose debt is rated "A" (or
higher) according to Standard & Poor's Ratings Service or Xxxxx'x Investors
Service, Inc. at the time as of which any investment or rollover therein is
made.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended (or any successor act), and the rules and regulations thereunder.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement, dated as of November 9, 1998 among
the Issuer, the Guarantor and the Initial Purchaser and the Holders from time
to time as provided therein, as such agreement may be amended from time to
time.
"Exchange Offer" has the meaning set forth in the form of
the Securities contained in Section 2.02.
"Exchange Offer Registration Statement" has the meaning set
forth in the form of the Securities contained in Section 2.02.
"Exchange Security" means any Security issued in exchange
for an Original Security or Original Securities pursuant to the Exchange Offer
or otherwise registered under the Securities Act and any Security with respect
to which the next preceding Predecessor Security of such Security was an
Exchange Security.
"Existing Stockholders" means (A) R.S. Xxxxxx, Xxxxxx &
Co., L.P., ("LGC"), (B) partners in LGC and Xxxxxx Xxxxxx Ventures LLC and
their Affiliates, in each case as of
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the Closing Date, (C) Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx
X. Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxx Xxxxxx and Xxxxxx
Xxxxxxx, (D) family members of any of the foregoing, (E) trusts, the only
beneficiaries of which are persons or entities described in clauses (A)
through (D) above and (F) partnerships which are controlled by the persons
or entities described in clauses (A) through (D) above.
"Expiration Date" has the meaning specified in the
definition of "Offer to Purchase".
"Global Security" means the security or securities issued
initially in bearer form that evidences all or part of the Securities and
bears the legend set forth in Section 2.02.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
is pledged and which have a remaining weighted average life to maturity of not
less than one year from the date of Investment therein.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed" and "Guaranteeing" shall have meanings correlative
to the foregoing); provided, however, that the Guarantee by any Person shall
not include endorsements by such Person for collection or deposit, in either
case, in the ordinary course of business.
"Guarantor" means the Person named as the "Guarantor" in
the first paragraph of this instrument until a successor Person shall have
become such Person pursuant to the applicable provisions of this Indenture and
thereafter "Guarantor" shall mean such successor Person.
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"Holder" means a Person (i) who is the bearer of a Global
Security (which shall initially be the Book-Entry Depositary) or (ii) in
whose name a Definitive Security is registered in the Security Register.
"Incremental Paid-in Capital" means as of any date the
cumulative aggregate amount of the increase in paid-in capital (determined
in accordance with generally accepted accounting principles applied on a
consistent basis) since September 30, 1997, as determined based on the most
recent unaudited quarterly or audited annual financial statements of the
Guarantor and its consolidated subsidiaries filed with the Commission, as
compared with the Guarantor's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997.
"Incur" means, with respect to any Debt or other
obligation of any Person, to create, issue, incur (by conversion, exchange
or otherwise), assume, enter into a Guarantee in respect of or otherwise
become liable in respect of such Debt or other obligation including by
acquisition of Subsidiaries or the recording, as required pursuant to
generally accepted accounting principles or otherwise, of any such Debt or
other obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to
the foregoing); provided, however, that a change in generally accepted
accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt and that neither the accrual of interest nor the accretion of original
issue discount shall be deemed an Incurrence of Debt.
"Indenture" means this instrument as originally executed
or 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.
"Indirect Participant" means a Person who holds an interest
through a Participant in a Depositary Interest issued by the Book-Entry
Depositary to the Depositary.
"Initial Purchaser" means Xxxxxxx, Sachs & Co.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any
Person means any forward contract, futures contract,
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swap, option or other financial agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements) relating to, or
the value of which is dependent upon, interest rates or currency exchange
rates or indices.
"Investment" by any Person means any direct or indirect
loan, advance or other extension of credit or capital contribution (by means
of transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by, any other Person, including any payment on a
Guarantee of any obligation of such other Person, but excluding any loan,
advance or extension of credit to an employee of the Guarantor or any of its
Subsidiaries in the ordinary course of business and commercially reasonable
extensions of trade credit. Without limiting the foregoing, the term
"Investment" 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 Guarantor or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary. For purposes of the definition of "Unrestricted Subsidiary" and
Section 10.10, (i) "Investment" shall include the fair market value of the
assets (net of liabilities (other than liabilities to the Guarantor or any of
its Restricted 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 Guarantor or any of its Restricted 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 an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer. Notwithstanding the foregoing, an acquisition of assets (including,
without limitation, Capital Stock or rights to acquire Capital Stock) by the
Guarantor or any of its Restricted Subsidiaries shall be deemed not to be an
Investment to the extent that the consideration therefor consists of Common
Stock of the Guarantor.
"Issuer" means the Person named as the "Issuer" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable
-15-
provisions of this Indenture and thereafter "Issuer" shall mean such
successor Person.
"Issuer Request" or "Issuer Order" means a written request
or order signed in the name of the Issuer by the Issuer's Chairman of the
Board, its Vice Chairman of the Board, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables
Sale, deposit arrangement, security interest, lien, charge, easement (other
than any easement not materially impairing usefulness), encumbrance,
preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Listing Failure" has the meaning specified in Section
10.09.
"Marketable Securities" means: (i) Government Securities;
(ii) any certificate of deposit maturing not more than 270 days after the date
of acquisition issued by, or time deposit of, an Eligible Institution; (iii)
commercial paper maturing not more than 270 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Guarantor) with a
rating, at the time as of which any investment therein is made, of "A-1" (or
higher) according to Standard & Poor's Ratings Service or "P-1" (or higher)
according to Xxxxx'x Investor Service, Inc.; (iv) any banker's acceptances or
money market deposit accounts issued or offered by an Eligible Institution;
(v) time deposits, certificates of deposit, bank promissory notes and bankers'
acceptances maturing not more than 180 days after the acquisition thereof and
guaranteed or issued by any of the ten largest banks (based on assets as of
the immediately preceding December 31), organized under the laws of any
jurisdiction in which one of the Restricted Subsidiaries does business or any
foreign country recognized by the United States and which are not under
intervention, bankruptcy or similar proceeding, not to exceed $10 million
outstanding at any one term; and (vi) any fund investing exclusively in
investments of the types described in clauses (i) through (iv) above.
-16-
"Maturity ", when used with respect to any Security, means
the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or readily marketable cash equivalents received (including
amounts received by way of sale or discounting of any note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiror of Debt or other obligations
relating to such properties or assets) therefrom by such Person, net of (i)
all legal, title and recording tax expenses, commissions and other fees and
expenses Incurred and all Federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Subsidiaries on any
Debt which is secured by such assets in accordance with the terms of any Lien
upon or with respect to such assets or which must by the terms of such Lien,
or in order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments made to minority interest holders
in Subsidiaries of such Person as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Subsidiary thereof,
as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets and
retained by such Person or any Subsidiary thereof, as the case may be, after
such Asset Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, in each case as determined by the
board of directors of such Person, in its reasonable good faith judgment;
provided, however, that any reduction in such reserve within 12 months
following the consummation of such Asset Disposition will be treated for all
purposes of the Indenture and the Securities as a new Asset Disposition at the
time of such reduction with Net Available Proceeds equal to the amount of such
reduction.
"Offer to Purchase" means a written offer (the "Offer")
sent by or on behalf of the Issuer by first class mail, postage prepaid, to
each Holder of Securities at his address appearing in the related Security
Register on the date of the Offer offering to purchase
-17-
up to the Accreted Value of Securities specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law, not
less than 30 days or more than 60 days after the date of such Offer and a
settlement date (the "Purchase Date") for purchase of Securities within five
Business Days after the Expiration Date. The Issuer shall notify in writing
the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Issuer's
obligation to make an Offer to Purchase, and the Offer shall be mailed by
the Issuer or, at the Issuer's request, by the Trustee in the name and at
the expense of the Issuer. The Offer shall contain information concerning
the business of the Guarantor and its Subsidiaries which the Guarantor and
Issuer in good faith believe will enable such Holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery
of such documents together with the Offer), (ii) a description of material
developments in the Guarantor's business subsequent to the date of the
latest of such financial statements referred to in clause (i) (including a
description of the events requiring the Issuer to make the Offer to
Purchase), (iii) if applicable, appropriate pro forma financial information
concerning the Offer to Purchase and the events requiring the Issuer to make
the Offer to Purchase and (iv) any other information required by applicable
law to be included therein). The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(b) the Expiration Date and the Purchase Date;
(c) the aggregate principal amount at maturity of the
Outstanding Securities offered to be purchased by the Issuer
pursuant to the Offer to Purchase (including, if less than 100%,
the manner by which such has been determined pursuant to the
Section hereof
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requiring the Offer to Purchase) (the "Purchase Amount");
(d) the purchase price to be paid by the Issuer for each
$1,000 aggregate principal amount at maturity of Securities
accepted for payment (as specified pursuant to the Indenture) (the
"Purchase Price");
(e) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any
portion of a Security tendered must be tendered in an integral
multiple of $1,000 principal amount at maturity;
(f) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(g) that interest on any Security not tendered or tendered
but not purchased by the Issuer pursuant to the Offer to Purchase
will continue to accrue;
(h) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall
cease to accrue on and after the Purchase Date;
(i) that each Holder electing to tender a Security pursuant
to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to
the close of business on the Expiration Date (such Security being,
if the Issuer or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing);
(j) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Issuer (or their Paying
Agent) receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount
at maturity of the Security the Holder tendered, the certificate
number of the Security the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
-19-
(k) that (a) if Securities in an aggregate principal amount
at maturity less than or equal to the Purchase Amount are duly
tendered and not withdrawn pursuant to the Offer to Purchase, the
Issuer shall purchase all such Securities and (b) if Securities in
an aggregate principal amount at maturity in excess of the
Purchase Amount are tendered and not withdrawn pursuant to the
Offer to Purchase, the Issuer shall purchase Securities having an
aggregate principal amount at maturity equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(l) that in the case of any Holder whose Security is
purchased only in part, the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an
aggregate principal amount at maturity equal to and in exchange
for the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Guarantor or the Issuer, as applicable, and
delivered to the Trustee and containing the statements provided for in Section
1.02. One of the officers signing an Officers' Certificate given pursuant to
Section 10.19 shall be the principal executive, financial or accounting
officer of the Guarantor.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be counsel for the Guarantor or the Issuer, and who shall be
acceptable to the Trustee, and containing the statements provided for in
Section 1.02.
"Original Securities" means all Securities that are subject
to an Exchange and Registration Rights Agreement, other than Exchange
Securities issued in exchange therefore.
"Outstanding ", when used with respect to Securities, means,
as of the date of determination, all
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Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancelation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Issuer) in trust or set aside
and segregated in trust by the Issuer (if the Issuer shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Issuer; and
(iv) Securities held by the Issuer, the Guarantor or any of
their respective Affiliates for purposes of determining the amount
of Securities that remain Outstanding after a redemption pursuant
to Section 11.01(a) and the related provision in such Securities;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Issuer or any other obligor
-21-
upon the Securities or any Affiliate of the Issuer or of such other obligor.
"Participant" means, with respect to the Depositary,
Euroclear or Cedel, a Person who has an account with the Depositary, Euroclear
or Cedel, respectively (and, with respect to the Depositary, shall include
Euroclear and Cedel).
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Issuer.
"Permitted Interest Rate or Currency Protection Agreement "
of any Person means any Interest Rate or Currency Protection Agreement entered
into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations in
interest rates or currency exchange rates with respect to Debt Incurred and
which shall have a notional amount no greater than the payments due with
respect to the Debt being hedged thereby and not for purposes of speculation.
"Permitted Investment" means (i) any Investment in the
Guarantor or a Restricted Subsidiary, (ii) any Investment in any Person as a
result of which such Person becomes a Restricted Subsidiary of the Guarantor
or upon the making of which such Person will be merged or consolidated with or
into or transfer all or substantially all of its assets to the Guarantor or a
Restricted Subsidiary, (iii) any Investment in Marketable Securities, (iv)
securities or other Investments received in settlement of debts created in the
ordinary course of business and owing to the Guarantor or any Restricted
Subsidiary, or as a result of foreclosure, perfection or enforcement of any
Lien, or in satisfaction of judgments, including in connection with any
bankruptcy proceeding or other reorganization of another Person, (v)
securities or other Investments received as consideration in sales or other
dispositions of property or assets, including Asset Dispositions made in
compliance with Section 10.13 and (vi) other Investments not in excess of $50
million in the aggregate at any time outstanding.
"Permitted Liens" means (a) Liens for taxes, assessments,
governmental charges or claims which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles shall have been
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made therefor; (b) other Liens incidental to the conduct of the Guarantor's
and its Restricted Subsidiaries' business or the ownership of its property
and assets not securing any Debt, and which do not in the aggregate
materially detract from the value of the Guarantor's and its Restricted
Subsidiaries' property or assets when taken as a whole, or materially impair
the use of such assets and property in the operation of its business; (c)
Liens with respect to assets of a Subsidiary granted by such Subsidiary to
the Guarantor to secure Debt owing to the Guarantor; (d) pledges and
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of statutory
obligations; (e) deposits made to secure the performance of tenders, bids,
leases, and other obligations of like nature incurred in the ordinary course
of business (exclusive of obligations for the payment of borrowed money);
(f) zoning restrictions, servitudes, easements, rights-of-way, restrictions
and other similar charges or encumbrances incurred in the ordinary course of
business which, in the aggregate, do not materially detract from the value
of the property subject thereto or interfere with the ordinary conduct of
the business of the Guarantor or its Restricted Subsidiaries; (g) Liens on
Capital Stock of Restricted Subsidiaries securing obligations not exceeding
$75 million at any time outstanding of the Guarantor or any Restricted
Subsidiary to repurchase or redeem shares of Capital Stock of such
Restricted Subsidiary held by Persons who are not Affiliates or Related
Persons of the Guarantor; (h) Liens arising out of judgments or awards
against the Guarantor or any Restricted Subsidiary with respect to which the
Guarantor or such Restricted Subsidiary is prosecuting an appeal or
proceeding for review and the Guarantor or such Restricted Subsidiary is
maintaining adequate reserves in accordance with generally accepted
accounting principles; and (i) any interest or title of a lessor in the
property subject to any lease other than a Capital Lease.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, government or agency or political subdivision thereof or any
other entity.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
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Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement, dated as
of November 2, 1998, between the Issuer, the Guarantor and the Initial
Purchaser, as such agreement may be amended from time to time.
"Purchase Money Debt" means Debt of the Guarantor
(including Acquired Debt and Debt represented by Capital Lease Obligations,
mortgage financings and purchase money obligations) Incurred for the purpose
of financing all or any part of the cost of construction, acquisition or
improvement by the Guarantor or any Restricted Subsidiary of the Guarantor of
any Telecommunications Assets of the Guarantor or any Restricted Subsidiary of
the Guarantor, and including any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith, as the
same may be amended, supplemented, modified or restated from time to time.
"readily marketable cash equivalents" means (i) marketable
securities issued or directly and unconditionally guaranteed by the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States; (ii) marketable direct obligations issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard &
Poor's Rating Service or Xxxxx'x Investors Service, Inc.; (iii) commercial
paper maturing no more than 180 days from the date of acquisition thereof and,
at the time of acquisition, having a rating of at least A-1 from Standard &
Poor's Ratings Service or at least P-1 from Xxxxx'x Investors Service, Inc.;
and (iv) certificates of deposit or bankers' acceptance maturing within one
year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia having unimpaired capital and surplus of not less
than $100,000,000.
"Receivables" means receivables, chattel paper,
instruments, documents or intangibles evidencing or relating to the right to
payment of money.
"Receivables Sale" of any Person means any sale of
Receivables of such Person (pursuant to a purchase facility or otherwise),
other than in connection with a disposition
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of the business operations of such Person relating thereto or a disposition
of defaulted Receivables for purpose of collection and not as a financing
arrangement.
"Redemption Date ", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price ", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means Exchange Securities and all
other Securities sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with any respective
Successor Securities.
"Regular Record Date" for the interest payable on any
Interest Payment Date means May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities
Act (or any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate
substantially in the form set forth in Annex A.
"Regulation S Global Security" has the meaning specified
in Section 2.01.
"Regulation S Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section
2.02 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities sold
pursuant to Regulation S, which are required pursuant to Section 3.05(c) to
bear a Regulation S Legend. Such term includes the Regulation S Global
Security.
"Related Person" of any Person means any other Person
directly or indirectly owning (a) 5% or more of the outstanding Common Stock
of such Person (or, in the case of a Person that is not a corporation, 5% or
more of the outstanding equity interest in such Person) or (b) 5% or more of
the combined outstanding voting power of the Voting Stock of such Person,
except that, for purposes of
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Section 10.12, Related Person means any other Person directly or indirectly
owning 10% or more of the combined outstanding voting power of the Voting
Stock of such Person (or, in the case of a Person that is not a corporation,
10% or more of the outstanding equity interest in such Person).
"Resale Registration Statement" has the meaning set forth
in the Form of the Securities contained in Section 2.02.
"Responsible Officer ", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Global Security" has the meaning specified in
Section 2.01.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S)
in reliance on Regulation S and (ii) the original issuance date of the
Securities.
"Restricted Securities" means all Securities required
pursuant to Section 3.05(c) to bear any Restricted Securities Legend. Such
term includes any Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms of the legends required in the form of
Security set forth in Section 2.02 to be placed upon each Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the
Guarantor other than an Unrestricted Subsidiary.
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"RSLNA" has the meaning specified in Section 1.14.
"Rule 144A" means Rule 144A under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Rule 144A Securities" means all Securities sold pursuant
to Rule 144A, which are required pursuant to Section 3.05(c) to bear a
Restricted Securities Legend. Such term includes the Restricted Global
Security.
"Securities" has the meaning specified in the first
paragraph of the recitals to this instrument.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities
Legend or a Regulation S Legend.
"Securities Guarantee" means the Securities Guarantee
issued by the Guarantor in accordance with Article IV hereunder.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Significant Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its Subsidiaries,
(i) for the most recent fiscal year of the Guarantor, accounted for more than
10% of the consolidated revenues of the Guarantor and its Restricted
Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of the Guarantor and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Guarantor for such fiscal year.
"Special Interest" has the meaning set forth in the form of
Security contained in Section 2.02. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Special
Interest.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity ", when used with respect to any Security
or any installment of interest thereon, means the
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date specified in such Security as the fixed date on which the principal
of such Security or such installment of interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of
the Security contained in Section 2.02.
"Step-Up" has the meaning set forth in the form of the
Security contained in Section 2.02.
"Strategic Investor" means a corporation, partnership or
other entity engaged in the Telecommunications Business that has, or 80% or
more of the Voting Stock of which is owned by a Person that has, an equity
market capitalization or paid in capital, at the time of any Investment by
such corporation, partnership or other entity in a Restricted Subsidiary
pursuant to clause (iv)(2) of Section 10.14, in excess of $100 million.
"Subordinated Debt" means Debt of the Guarantor or any
Restricted Subsidiary as to which the payment of principal of (and premium, if
any) and interest and other payment obligations in respect of such Debt shall
be subordinate to the prior payment in full of the Securities to at least the
following extent: (i) no payments of principal of (or premium, if any) or
interest on or otherwise due in respect of such Debt may be permitted for so
long as any default in the payment of principal (or premium, if any) or
interest on the Securities exists; (ii) in the event that any other default
that with the passing of time or the giving of notice, or both, would
constitute an event of default exists with respect to the Securities, upon
written notice by 25% or more in principal amount at maturity of the
Securities to the Trustee, the Trustee shall have the right to give notice to
the Guarantor or such Restricted Subsidiary and the holders of such Debt (or
trustees or agents therefor) of a payment blockage, and thereafter no payments
of principal of (or premium, if any) or interest on or otherwise due in
respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of principal
of such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance,
retirement or repurchase thereof by the Guarantor or such Restricted
Subsidiary (including any redemption, retirement or repurchase which is
contingent upon events or circumstances, but excluding any retirement required
by virtue of acceleration of such Debt upon an event of default thereunder),
in each case prior to the final Stated Maturity of the Securities or (y)
permit
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redemption or other retirement (including pursuant to an offer to purchase
made by the Guarantor or such Restricted Subsidiary) of such other Debt at
the option of the holder thereof prior to the final Stated Maturity of the
Securities, other than a redemption or other retirement at the option of the
holder of such Debt (including pursuant to an offer to purchase made by the
Guarantor or such Restricted Subsidiary) which is conditioned upon a change
of control of the Guarantor pursuant to provisions substantially similar to
those described under Section 10.17 (and which shall provide that such Debt
will not be repurchased pursuant to such provisions prior to the Guarantor's
or such Restricted Subsidiary's repurchase of the Securities required to be
repurchased pursuant to the provisions described under Section 10.17).
"Subsidiary" of any Person means (i) a corporation more
than 50% of the combined voting power of the outstanding Voting Stock, of
which is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management and affairs
thereof. An 80% or more owned Subsidiary of the Guarantor is (i) a corporation
80% or more of the combined voting power of the outstanding Voting Stock, and
more than 80% of the Capital Stock or other ownership interests, of which is
owned, directly or indirectly, by the Guarantor or by one or more other
Subsidiaries of the Guarantor or by the Guarantor and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which the
Guarantor, or one or more other Subsidiaries of the Guarantor or the Guarantor
and one or more other Subsidiaries of the Guarantor, directly or indirectly,
has at least an 80% ownership interest and power to direct the policies,
management and affairs thereof.
"Subsidiary Guarantor" means a Subsidiary of the Guarantor
that has unconditionally guaranteed, by supplemental indenture substantially
similar in form to Article IV hereof and otherwise satisfactory to the
Trustee, the payment in full of the principal of (and premium, if any) and
interest on the Securities.
"Substitute Securities" has the meaning specified in
Section 3.01.
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"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as
that evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Tax" means any tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and any other
liabilities related thereto).
"Taxing Authority" means any government or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"Telecommunications Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible,
used or intended for use in connection with a Telecommunications Business,
including a majority of the Voting Stock of a Person engaged in the
Telecommunications Business.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased transmission facilities, (ii) creating,
developing or marketing communications related network equipment, software and
other devices for use in a Telecommunications Business or (iii) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in (i) or (ii) above; provided that the
determination of what constitutes a Telecommunications Business shall be made
in good faith by the Board of Directors of the Guarantor.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such
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date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Guarantor that at the time of determination shall be designated an
Unrestricted Subsidiary of the Guarantor by the Board of Directors in the
manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Restricted Subsidiary (including any
newly acquired or newly formed Subsidiary of the Guarantor) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Guarantor or any Restricted
Subsidiary; provided that (A) any Guarantee by the Guarantor or any Restricted
Subsidiary of any Debt of the Subsidiary being so designated shall be deemed
an "Incurrence" of such Debt and an "Investment" by the Guarantor or such
Restricted Subsidiary (or both, if applicable) at the time of such
designation, in each case, to the extent such Debt is so Guaranteed by the
Guarantor or such Restricted Subsidiary; (B) either (I) the Subsidiary to be
so designated has total assets of $1,000 or less or (II) if such Subsidiary
has assets greater than $1,000, such designation would be permitted under
Section 10.10 and (C) if applicable, the Incurrence of Debt and the Investment
referred to in clause (A) of this proviso would be permitted under Sections
10.08 and 10.10. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after
giving effect to such designation (x) the Guarantor could Incur $1.00 of
additional Debt under the first paragraph of Section 10.08 and (y) no Default
or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"Vice President ", when used with respect to the Issuer, the
Guarantor or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice
president".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the
-31-
election of directors (or persons performing similar functions) of such
Person, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary
of such Person all of the outstanding Voting Stock or other ownership
interests (other than directors' qualifying shares) of which shall at the time
be owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
SECTION 1.02. 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, the Issuer and Guarantor shall furnish
to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act and under this Indenture. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Issuer or the Guarantor, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.03. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate of an officer of the Issuer or Guarantor may
be based, insofar as it relates to legal matters, upon an opinion of counsel
submitted therewith, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion with respect to the matters upon
which his certificate is based is erroneous. Any opinion of counsel may be
based, insofar as it relates to factual matters, upon a certificate of an
officer or officers of the Issuer or Guarantor submitted therewith stating the
information on which counsel is relying, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate with respect to
such matters is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates .
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 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 or the Guarantor.
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 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) conclusive in favor of the
Trustee
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and the Issuer and Guarantor, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Issuer or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
The Issuer may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or
taken by Holders of Securities; provided that the Issuer may not set a record
date for, and the provisions of this paragraph shall not apply with respect
to, the giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If not set by the Issuer prior to the first
solicitation of a Holder made by any Person in respect of any such matter
referred to in the foregoing sentence, the record date for any such matter
shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 7.01) prior to such first
solicitation. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action,
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whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount
at maturity of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Issuer from setting a new record
date for any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount at
maturity of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Issuer, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities in the manner set
forth in Section 1.06.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to
in Section 5.12. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount at
maturity of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount at maturity of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Issuer's
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration
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Date to be given to the Issuer in writing and to each Holder of Securities
in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may designate any day
as the "Expiration Date" and from time to time may change the Expiration Date
to any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities in the manner set forth in
Section 1.06, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date
as provided in this paragraph. Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee, Issuer and
Guarantor. 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,
(1) the Trustee by any Holder or by the Issuer or the
Guarantor shall be sufficient for every purpose hereunder if
delivered in writing to a Responsible Officer of the Trustee at
its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Issuer or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Issuer or the Guarantor as
applicable, addressed to it, if prior to receipt by the Trustee of
written notice pursuant to this Section 1.05 of a change of
address, at the address of its principal office specified in the
first paragraph of this instrument,
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or, if after receipt by the Trustee of written notice pursuant to
this Section 1.05 of a change of address, at such other address as
may be previously furnished in writing to the Trustee by the
Issuer or the Guarantor, as applicable.
SECTION 1.06. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to 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. 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 give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.07. Application of Trust Indenture Act. The Trust
Indenture Act shall apply as a matter of contract to this Indenture for
purposes of interpretation, construction and defining the rights and
obligations hereunder. If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded,
as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the
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Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 1.09. 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 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders
of Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Governing Law. This Indenture, the Securities
and the Securities Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 1.13. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) 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, Purchase Date or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity,
as the case may be.
SECTION 1.14. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Indenture, each
of the Issuer and the Guarantor (i) represents that it has designated and
appointed RSL Communications N. America, Inc. ("RSLNA"), as its authorized
agent upon which process may be served in any suit, action or proceeding
arising out of or relating to the Securities, the Securities Guarantee or this
Indenture that may be instituted in any Federal or state court in the State of
New York, Borough of Manhattan, or brought under Federal or state securities
laws or brought by the Trustee (whether
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in its individual capacity or in its capacity as Trustee hereunder), and
that RSLNA has accepted such designation, (ii) submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, (iii)
agrees that service of process upon RSLNA and written notice of said service
to the Issuer or the Guarantor, as applicable, (mailed or delivered to its
President at its principal office as specified in Section 1.05) shall be
deemed in every respect effective service of process upon it in any such
suit or proceeding, and (iv) agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as
may be necessary to continue such designation and appointment of RSLNA in
full force and effect so long as any of the Securities shall be Outstanding.
To the extent that the Issuer or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, each of the Issuer and the Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture, the Securities Guarantee and the Securities, to the extent
permitted by law.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities and the
Trustee's certificates of authentication thereof shall be in substantially the
forms set forth in this Article, with such appropriate legends, insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
Upon their original issuance, Rule 144A Securities shall be
issued in the form of a Global Security in bearer form without interest
coupons, which shall be deposited on behalf of the Initial Purchaser with the
Book-Entry Depositary at its New York corporate trust office, duly executed by
the Issuer and authenticated by the Trustee as
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hereinafter provided. Such Global Security, together with its Successor
Securities which are Global Securities other than the Regulation S Global
Security, are collectively herein called the "Restricted Global Security".
Upon their original issuance, Regulation S Securities shall be issued in the
form of a Global Security in bearer form without interest coupons, which
shall be deposited on behalf of the Initial Purchaser with the Book-Entry
Depositary at its New York corporate trust office, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. Such Global
Security, together with its Successor Securities which are Global Securities
other than the Restricted Global Security, are collectively herein called
the "Regulation S Global Security".
Upon receipt of the Restricted Global Security and the
Regulation S Global Security authenticated and delivered by the Trustee, the
Book-Entry Depositary shall issue to the Depositary a Depositary Interest in
each such Global Security by recording the Depositary Interest in the register
of the Book Entry Depositary in the name of Cede & Co., as nominee of the
Depositary. Ownership of beneficial interests shall be limited to
Participants, including Euroclear and Cedel, and Indirect Participants. Upon
the issuance of the Depositary Interest in such Global Security to the
Depositary, the Depositary shall credit, on its internal book-entry
registration and transfer system, its Participant's accounts with respective
interests owned by such Participants.
Neither the Depositary nor its Participants shall have any
rights either under this Indenture or under any Global Security with respect
to such Global Security held on their behalf by the Book-Entry Depositary, and
the Book-Entry Depositary may be treated by the Issuer, the Trustee and any
agent of the Issuer or the Trustee as the absolute owner of such Global
Security for the purpose of receiving payment of or on account of the
principal of (premium, if any) and, subject to the provisions of this
Indenture, interest on the Global Security and for all other purposes.
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
Book-Entry Depositary or impair, as between the Book-Entry Depositary and the
Depositary and its Participants, the operation of customary practices of such
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Security.
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The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. Form of Face of Security. [If a Global
Security issued in bearer form, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
HELD BY THE BOOK-ENTRY DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. THIS
SECURITY IS NOT EXCHANGEABLE IN WHOLE OR IN PART OR TRANSFERABLE IN WHOLE OR
IN PART EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If Restricted Securities, then insert -- THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTION THAT IS AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (IF AVAILABLE), OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS.]
[If a Regulation S Security, then insert -- THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE.]
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE RULES
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AND REGULATIONS THEREUNDER, AS OF THE ISSUE DATE, THIS SECURITY IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT. FOR INFORMATION REGARDING THE ISSUE
PRICE OF THIS SECURITY, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE
DATE OF THIS SECURITY AND THE YIELD TO MATURITY, PLEASE CONTACT THE GLOBAL
CONTROLLER, CARE OF RSL COMMUNICATIONS N. AMERICA, 000 XXXXX XXXXXX, XXXXX
0000, XXX XXXX, XXX XXXX 00000.
12% SENIOR NOTES DUE 2008
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 74972E AE 8]
[IF REGULATION S GLOBAL SECURITY - CUSIP XX. X0000X XX 0;
XXXX XX. - XXX0000X XX E58]
No. __________ $_______________
RSL Communications PLC, a United Kingdom corporation (herein
called the "Issuer", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to [If this Security is a Global Security issued in bearer form, then insert:
the bearer hereof] [If this Security is not a Global Security issued in bearer
form, then insert: _____________, or registered assigns], the principal sum of
______________ DOLLARS [if this Security is a Global Security, then insert:
(which principal amount may from time to time be increased or decreased to
such other principal amounts by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture)] on November 1,
2008, and to pay cash interest thereon from November 9, 1998 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 1 and November 1, in each year, at the rate of 12%
per annum on the principal amount at maturity, until the principal hereof is
paid or made available for payment; [If Original Securities, then insert:
provided, however, that if the Issuer has not filed a registration statement
(the "Exchange Offer Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), registering a security substantially
identical to this Security (except that such Security will not contain terms
with respect to the Special Interest payments described below or transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer") (or, in
lieu thereof, a registration statement registering this Security for resale (a
"Resale Registration Statement")), and (i) the Exchange Offer has not been
completed by 270 days after the date of the Indenture (if the Exchange Offer
is then required to be made pursuant to the Exchange and
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Registration Rights Agreement (the "Exchange and Registration Rights
Agreement"), by and between the Issuer, the Guarantor, as defined in the
Indenture, the Purchaser (as defined therein) and the Holders from time to
time of the Securities) or (ii) any Resale Registration Statement required
to be filed by the Exchange and Registration Rights Agreement is filed and
declared effective but shall thereafter cease to be effective (except as
specifically permitted therein) without being succeeded promptly by an
additional registration statement filed and declared effective upon the
terms and conditions set forth in the Exchange and Registration Rights
Agreement (each such event referred to in clauses (i) and (ii), a
"Registration Default"), then interest will accrue (in addition to the
stated interest on the Securities) (the "Step-Up") at a rate of 0.5% per
annum, determined daily, on the principal amount at maturity of the
Securities, from the period from and including the date of occurrence of the
Registration Default to but excluding such date (the "Step-Down Date") as no
Registration Default is in effect (commencing on which date such interest
rate will be restored to its initial rate). Interest accruing as a result of
the Step-Up is referred to herein as "Special Interest." Accrued Special
Interest, if any, shall be paid semi-annually on May 1 and November 1 in
each year; and the amount of accrued Special Interest shall be determined on
the basis of the number of days actually elapsed. Any accrued and unpaid
interest (including Special Interest) on this Security upon the issuance of
an Exchange Security (as defined in the Indenture) in exchange for this
Security shall cease to be payable to the Holder hereof but such accrued and
unpaid interest (including Special Interest) shall be payable on the next
Interest Payment Date for such Exchange Security to the Holder thereof [if
not a Global Security in bearer form, insert: on the related Regular Record
Date].] The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
[If this Security is a Global Security issued in bearer form, then insert:
the
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bearer hereof on the Interest Payment Date] [If this Security is not a
Global Security issued in bearer form, then insert: the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall
be April 15 or October 15 (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 will forthwith cease to be payable to
the Holder on such Interest Payment Date and may either be paid to [If this
Security is a Global Security issued in bearer form, then insert: the bearer
hereof on the Special Payment Date] [If this Security is not a Global
Security issued in bearer form, then insert: the Person in whose name this
Security (or one or more Predecessor Securities) 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 whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record
Date,] or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Under certain circumstances described in the Indenture, the
Issuer (or the Guarantor) also shall pay Additional Amounts to the Holders of
Securities equal to an amount that the Issuer or Guarantor, as the case may
be, may be required to withhold or deduct for or on account of Taxes imposed
by a Taxing Authority within the United Kingdom or Bermuda, as the case may
be, from any payment made under or with respect to the Securities or the
Securities Guarantee. In addition, the Issuer or the Guarantor shall, under
certain circumstances described in the Indenture, reimburse such Holder for
the amount of any taxes levied or imposed by the U.K. or Bermuda and paid by
such Holder as a result of any payment made under or with respect to the
Securities or under the Securities Guarantee.
In the case of a default in payment of Accreted Value of and
premium, if any, on this Security upon acceleration or redemption, interest
shall be payable pursuant to the preceding paragraph on such overdue Accreted
Value and premium, if any, such interest shall be payable on demand and, if
not so paid on demand, such interest shall itself bear interest at the rate of
14% per annum (to the extent that the payment of such interest shall be
legally enforceable), and shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided
for, and such interest on unpaid interest shall also be payable on demand.
[If this Security is a Global Security issued in bearer
form, then insert: The Issuer will pay interest, if any, on this Security to
the bearer of this Security. The Holder of this Security must surrender this
Security to the Trustee to collect principal payments.] Payment of the
principal of (and premium, if any) and interest on this Security will be made
at the corporate trust office of the Trustee and at the office or agency of
the Issuer maintained
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for that purpose in the Borough of Manhattan, The City of New York, New
York, and at any other office or agency maintained by the Issuer 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 at the option of the Issuer payment of interest may
be made by check mailed to the address of the Person entitled thereto as
such address [If this Security is a Global Security in bearer form, then
insert: is specified by the bearer hereof] [If this Security is a Definitive
Security, then insert: shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
-45-
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed under its corporate seal.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by
----------------------
Name:
Title:
by
----------------------
Name:
Title:
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SECTION 2.03. Form of Reverse of Security. This Security is
one of a duly authorized issue of Securities of the Issuer designated as its
12% Senior Notes due 2008 (the "Securities") issued under an Indenture, dated
as of November 9, 1998 (herein called the "Indenture"), between the Issuer,
RSL Communications, Ltd., as the guarantor (the "Guarantor") and The Chase
Manhattan Bank, as trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture). Reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Guarantor, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Securities are subject to redemption upon not less than
30 nor more than 60 days' notice by mail to each Holder of Securities to be
redeemed at such Holder's address appearing in the Security Register, in
amounts of $1,000 or an integral multiple of $1,000, at any time on or after
November 1, 2003 and prior to maturity, as a whole or in part, at the election
of the Issuer, at the following Redemption Prices (expressed as percentages of
the Accreted Value) plus accrued interest to but excluding the Redemption Date
(subject to the right of Holders [If this Security is not a Global Security
issued in bearer form, insert: on the relevant Regular Record Date] to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period beginning November 1, of each of
the years indicated below:
Redemption
Year Price
---- -----
2003 106.000%
2004 104.000%
2005 102.000%
2006 and 100.000%
thereafter
and thereafter at a Redemption Price equal to 100% of the Accreted Value,
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities [If this Security is not a
Global Security issued in bearer
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form, insert:, of record at the close of business on the relevant Record
Dates referred to on the face hereof,] all as provided in the Indenture.
In addition, at any time prior to November 1, 2001, in the
event that the Guarantor receives net cash proceeds from the public or private
sale of its Common Stock (other than Disqualified Stock), the Issuer (to the
extent it receives such proceeds and has not used such proceeds, directly or
indirectly, to redeem or repurchase other securities pursuant to optional
redemption provisions) may, at its option, apply an amount equal to any such
net cash proceeds or any portion thereof to redeem, from time to time,
Securities in a principal amount at maturity of up to an aggregate amount
equal to 33 1/3% of the original aggregate principal amount at maturity of the
Securities; provided, however, that Securities in an amount equal to at least
66 2/3% of the aggregate original principal amount at maturity of the
Securities remain Outstanding after each redemption. Each redemption must
occur on a Redemption Date within 180 days of the related sale and upon not
less than 30 nor more than 60 days' notice by mail to each Holder of
Securities to be redeemed at such Holder's address appearing in the Security
Register, in amounts of $1,000 or an integral multiple of $1,000 at a
Redemption Price of 112.000% of the Accreted Value of the Securities plus
accrued interest to but excluding the Redemption Date.
Furthermore, in the event that (i) the Guarantor or the
Issuer has become or would become obligated to pay any Additional Amounts as a
result of (x) changes affecting withholding tax laws or (y) a Listing Failure
provided that the Issuer has used reasonable best efforts to list and maintain
a listing of the Securities on a "recognized stock exchange" (within the
meaning of Section 841 of the U.K. Income and Corporation Taxes Act 1988) (as
provided for in Section 10.09), and (ii) the Guarantor and the Issuer are
unable to avoid the requirement to pay such Additional Amounts by taking
reasonable measures available to them (including, without limitation, the
Guarantor making payments directly to holders under the Securities Guarantee,
unless such payment is likely to result in adverse consequences to the Issuer
or the Guarantor), then the Issuer may redeem all, but not less than all, of
the Securities at any time at 100% of the Accreted Value thereof on the
Redemption Date, together with accrued interest thereon, if any, to but
excluding the Redemption Date. Prior to the publication of the notice of
redemption in accordance with the foregoing, the Issuer shall deliver to the
Trustee an officer's certificate stating that the Issuer
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is entitled to effect such redemption based on a written opinion of
independent tax counsel or accounting firm reasonably satisfactory to the
Trustee.
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions,
if (i) a Change of Control occurs or (ii) certain Net Available Proceeds are
available to the Issuer as a result of any Asset Disposition, the Issuer shall
be required to make an Offer to Purchase for all or a specified portion of the
Securities.
[If not a Global Security: In the event of redemption or
purchase pursuant to an Offer to Purchase of this Security in part only, a new
Security or Securities of like tenor for the unredeemed or unpurchased portion
hereof will be issued in the name of the Holder hereof upon the cancelation
hereof.]
[If a Global Security insert: In the event of a deposit or
withdrawal of a beneficial interest in this Security (including upon an
exchange, transfer, redemption or repurchase of this Security in part only)
effected in accordance with the Applicable Procedures, the Security Registrar,
upon receipt of notice of such event from the Depositary's custodian for this
Security shall make an adjustment on its records to reflect an increase or
decrease of the Outstanding principal amount at maturity of this Security
resulting from such deposit or withdrawal, as the case may be, and shall
instruct the Book-Entry Depositary to make a similar notation in its
book-entry system to the corresponding Depositary Interest.]
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security, or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth therein.
Unless the context otherwise requires, the Original
Securities and the Exchange Securities shall constitute one series for all
purposes under the Indenture,
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including without limitation, amendments, waivers, redemptions and Offers to
Purchase.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer, the Guarantor and the rights of the Holders of the
Securities under the Indenture at any time by the Issuer, the Guarantor and
the Trustee with the consent of the Holders of a majority in aggregate
principal amount at maturity of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount at maturity of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Issuer or the Guarantor with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
[If this Security is not a Global Security issued in bearer
form, then insert: As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in the Borough of Manhattan,
the City of New York, New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar duly executed by the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and like tenor and for the same aggregate principal amount at
maturity, will be issued to the designated transferee or transferees.]
The Global Securities are issuable only in bearer form
without coupons in denominations of $1,000 and any integral multiple thereof.
Definitive Securities shall be
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issuable in registered form without interest coupons in denominations of
$1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities are
exchangeable for a like tenor and aggregate principal amount at maturity of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
[If this Security is a Global Security issued in bearer
form, then insert: The bearer of this Security shall be treated as the owner
of this Security for all purposes.]
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
[If this Security is not a Global Security issued in bearer
form, insert: Prior to due presentment of this Security for registration of
transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor, or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Issuer, the Guarantor, the Trustee nor
any such agent shall be affected by notice to the contrary.]
Interest on this Security shall be computed on the basis of
a 360-day year of twelve 30-day months [If Original Securities, then insert: ;
provided, however, that Special Interest shall be computed on the basis of a
365- or 366-day year, as the case may be, and the number of days actually
elapsed].
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Issuer pursuant to Section 10.13 or 10.17 of the Indenture, check the box:
[ ]
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If you want to elect to have only a part of this Security
purchased by the Issuer pursuant to Section 10.13 or 10.17 of the Indenture,
state the amount: $___________
Dated:_____________ Your Signature:_____________________________
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:____________________________________________________________
Notice: Signature(s) must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the Security
Registrar which requirements will include
membership or participation in STAMP or
such other "signature guarantee program"
as may be determined by the Trustee in
addition to, or in substitution for STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
SECTION 2.04. Form of Trustee's Certificate of
Authentication. This is one of the Securities referred to in the
within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
by___________________________
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal
amount maturity of Securities which may be authenticated and delivered under
this Indenture is limited to $100,000,000 issued on the date hereof, except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities pursuant to Section 3.04,
3.05, 3.06, 9.06 or 11.08 or in connection with an Offer to Purchase pursuant
to Section 10.13 or 10.17 (all Securities referred to in this
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exception being deemed "Substitute Securities"). The Issuer may issue
Exchange Securities from time to time pursuant to an Exchange Offer or
otherwise, in each case pursuant to a Board Resolution, subject to Section
3.03, included in an Officers' Certificate delivered to the Trustee, in
authorized denominations in exchange for a like principal amount at maturity
of Original Securities. Upon any such exchange the Original Securities shall
be canceled in accordance with Section 3.09 and shall no longer be deemed
Outstanding for any purpose. In no event shall the aggregate principal
amount at maturity of Original Securities and Exchange Securities
Outstanding exceed $100,000,000.
The Securities shall be known and designated as the "12%
Senior Notes due 2008" of the Issuer. The Stated Maturity of the Securities
shall be November 1, 2008. The Securities shall bear cash interest at the rate
of 12% per annum on the principal amount at maturity of the Notes, from
November 9, 1998 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on May 1 and November 1, commencing May 1, 1999, until the
principal thereof is paid or made available for payment; provided, however,
with respect to Original Securities, if there has been a Registration Default,
a Step-Up will occur and the Original Securities will from then bear Special
Interest to but excluding the Step-Down Date. Accrued Special Interest, if
any, shall be paid in cash in arrears semi-annually on May 1 and November 1 in
each year, and the amount of accrued Special Interest shall be determined on
the basis of the number of days actually elapsed.
With respect to Global Securities, the Issuer will pay
interest, if any, on such Securities to the bearers of such Securities.
Holders of such Global Securities must surrender such Securities to the
Trustee to collect principal payments. The principal of and premium, if any,
and interest on the Securities shall be payable at the corporate trust office
of the Trustee in the Borough of Manhattan, the City of New York, New York,
maintained for such purpose and at any other office or agency maintained by
the Issuer for such purpose; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Issuer
pursuant to an Offer to Purchase as provided in Sections 10.13 and 10.17 of
the Indenture.
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The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall not have the benefit of any sinking
fund obligations.
The Securities shall be subject to defeasance at the option
of the Issuer as provided in Article Twelve.
The Securities are guaranteed by the Guarantor as set forth
in Article IV of this Indenture.
A copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate or the trust indenture supplemental hereto setting forth the terms
of such Securities.
Unless the context otherwise requires, the Original
Securities and the Exchange Securities shall constitute one series for all
purposes under the Indenture, including without limitation, amendments,
waivers, redemptions and Offers to Purchase.
SECTION 3.02. Denominations. The Global Securities shall be
issuable in bearer form without coupons and only in denominations of $1,000
and any integral multiple of $1,000 in excess thereof. Definitive Registered
Securities shall be issuable in registered form without interest coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating
. The Securities shall be executed on behalf of the Issuer by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities executed by the
Issuer to the Trustee for authentication, together with a Issuer Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Issuer Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a Registration
Statement under the Securities Act with respect thereto, the Issuer may
deliver Exchange Securities executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Exchange Securities and a like principal amount at maturity
of Original Securities for cancelation in accordance with Section 3.09 of this
Indenture, and the Trustee in accordance with the Issuer Order shall
authenticate and deliver such Securities. In authenticating such Exchange
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(a) that such Exchange Securities have been duly and validly
issued in accordance with the terms of the Indenture, and are
entitled to all the rights and benefits set forth herein; and
(b) that the issuance of the Exchange Securities in exchange
for the Original Securities has been effected in compliance with the
Securities Act of 1933, as amended.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation
of definitive Securities, the Issuer may
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execute, and upon Issuer Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Issuer will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Issuer designated pursuant to
Section 10.02, without charge to the Holder. Upon surrender for cancelation of
any one or more temporary Securities, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like tenor and principal
amount at maturity of definitive Securities of authorized denominations. Until
so exchanged, the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. (a) 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 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Definitive Securities and of transfers of such
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering such Securities and transfers of such Securities as
herein provided. Such Security Register shall distinguish between Original
Securities and Exchange Securities.
Subject to the other provisions of this Indenture regarding
restrictions on transfer, upon surrender for registration of transfer of any
Definitive Security at an office or agency of the Issuer designated pursuant
to Section 10.02 for such purpose in accordance with the terms hereof, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
of any authorized denominations and of a like tenor and aggregate
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principal amount at maturity and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 3.05, Securities may be exchanged for other
Securities of any authorized denominations and of a like tenor and aggregate
principal amount at maturity, upon surrender of such Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer,
evidencing the same debt, and (subject to the provisions in the Original
Securities regarding the payment of Special Interest) entitled to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 3.05(d), 9.06 or
11.08 or in accordance with any Offer to Purchase pursuant to Section 10.13 or
10.17 not involving any transfer.
The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 11.04 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
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(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Indenture or the Securities, transfers and exchanges
of Securities and beneficial interests in a Global Security of the kinds
specified in this Section 3.05(b) shall be made only in accordance with this
Section 3.05(b) or, if necessary, in accordance with such other procedures as
the Issuer shall develop which shall comply with applicable securities laws.
(i) Restricted Global Security to Regulation S
Global Security. If the owner of a beneficial interest in the
Restricted Global Security wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the form of a
beneficial interest in the Regulation S Global Security, such
transfer may be effected only in accordance with the provisions of
this Clause (b)(i) and Clause (b)(v) below and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation
S Global Security in a specified Agent Member's principal amount at
maturity be credited to a specified Agent Member's account and that a
beneficial interest in the Restricted Global Security in an equal
principal amount at maturity be debited from another specified Agent
Member's account and (B) a Regulation S Certificate, satisfactory to
the Trustee and duly executed by the owner of such beneficial
interest in the Restricted Global Security or his attorney duly
authorized in writing, then the Trustee, as Security Registrar but
subject to Clause (b)(v) below, shall reduce or cause to be reduced
the principal amount at maturity of the Restricted Global Security
and increase the principal amount at maturity of the Regulation S
Global Security by such specified principal amount at maturity as
provided in Section 3.05(e).
(ii) Regulation S Global Security to Restricted
Global Security. If the owner of a beneficial interest in the
Regulation S Global Security wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the form of a
beneficial interest in the Restricted Global Security, such transfer
may be effected only in accordance with this Clause (b)(ii) and
subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the Depositary or its
authorized representative directing that a beneficial interest in the
Restricted Global Security in a specified principal
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amount at maturity be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Global
Security in an equal principal amount at maturity be debited from
another specified Agent Member's account and (B) if such transfer
is to occur during the Restricted Period, a Restricted Securities
Certificate, satisfactory to the Trustee and duly executed by the
owner of such beneficial interest in the Regulation S Global
Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce or cause to be
reduced the principal amount at maturity of the Regulation S
Global Security and increase the principal amount at maturity of
the Restricted Global Security by such specified principal amount
at maturity as provided in Section 3.05(e).
(iii) Definitive Security to Definitive Security. A
Security that is a Definitive Security may be transferred, in whole
or in part, to a Person who takes delivery in the form of another
Security that is a Definitive Security as provided in Section
3.05(a), provided that, if the Security to be transferred in whole or
in part is a Restricted Security, or is a Regulation S Security and
the transfer is to occur during the Restricted Period, then the
Trustee shall have received (A) a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by the transferor
Holder or his attorney duly authorized in writing, in which case the
transferee Holder shall take delivery in the form of a Restricted
Security, or (B) a Regulation S Certificate, satisfactory to the
Trustee and duly executed by the transferor Holder or his attorney
duly authorized in writing, in which case the transferee Holder shall
take delivery in the form of a Regulation S Security (subject in
every case to Section 3.05(c)).
(iv) Exchanges between Global Security and
Definitive Security. A beneficial interest in a Global Security may
be exchanged for a Security that is a Definitive Security as provided
in Section 3.05(d), provided that, if such interest is a beneficial
interest in the Restricted Global Security, or if such interest is a
beneficial interest in the Regulation S Global Security and such
exchange is to occur during the Restricted Period, then such interest
shall be exchanged for a Restricted Security or a Regulation S
Security, as the case may be (subject in each case to Section
3.05(c)).
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(v) Regulation S Global Security to be Held Through
Euroclear or Cedel during Restricted Period. The Issuer shall use its
best efforts to cause the Depositary to ensure that, until the
expiration of the Restricted Period, beneficial interests in the
Regulation S Global Security may be held only in or through accounts
maintained at the Depositary by Euroclear or Cedel (or by Agent
Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an
account; provided that this Clause (b)(v) shall not prohibit any
transfer or exchange of such an interest in accordance with Clause
(b) above.
(c) Securities Act Legends. Rule 144A Securities and their
Successor Securities shall bear a Restricted Securities Legend, and the
Regulation S Securities and their Successor Securities shall bear a Regulation
S Legend, subject to the following:
(i) subject to the following Clauses of this
Section 3.05(c), a Security or any portion thereof which is
exchanged, upon transfer or otherwise, for a Global Security or any
portion thereof shall bear the Securities Act Legend borne by such
Global Security while represented thereby;
(ii) subject to the following Clauses of this
Section 3.05(c), a new Security which is a Definitive Security and is
issued in exchange for a Global Security or any portion thereof, upon
transfer or otherwise, shall bear the Securities Act Legend borne by
such other Security, provided that, if such new Security is required
pursuant to Section 3.05(b)(iii) or (iv) to be issued in the form of
a Restricted Security, it shall bear a Restricted Securities Legend
and, if such new Security is so required to be issued in the form of
a Regulation S Security, it shall bear a Regulation S Legend;
(iii) Registered Securities shall not bear a
Securities Act Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities
Act, a new Security which does not bear a Securities Act Legend
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may be issued in exchange for or in lieu of a Security (other than
a Global Security) or any portion thereof which bears such a
legend if the Trustee has received an Unrestricted Securities
Certificate, satisfactory to the Trustee and duly executed by the
Holder of such legended Security or his attorney duly authorized
in writing, and after such date and receipt of such certificate,
the Trustee shall authenticate and deliver such a new Security in
exchange for or in lieu of such other Security as provided in this
Article III;
(v) a new Security which does not bear a Securities
Act Legend may be issued in exchange for or in lieu of a Security
(other than a Global Security) or any portion thereof which bears
such a legend if, in the Issuer's judgment, placing such a legend
upon such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the direction of the Issuer, shall authenticate and deliver such a
new Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of
this Section 3.05(c), a Successor Security of a Security that does
not bear a particular form of Securities Act Legend shall not bear
such form of legend unless the Issuer has reasonable cause to believe
that such Successor Security is a "restricted security" within the
meaning of Rule 144, in which case the Trustee, at the direction of
the Issuer, shall authenticate and deliver a new Security bearing a
Restricted Securities Legend in exchange for such Successor Security
as provided in this Article III.
(d) Exchanges of Global Security for Definitive Security.
Transfers of Global Securities shall be by delivery. The Book-Entry Depositary
and the Issuer have agreed that the Global Securities shall only be delivered
in the circumstances described in the Deposit Agreement. Notwithstanding any
other provision in this Indenture, no Global Security may be exchanged in
whole or in part for Definitive Securities unless (i) the Depositary notifies
the Issuer or the Book-Entry Depositary in writing that it (or its nominee) is
unwilling or unable to continue to act as depositary, or ceases to be, a
clearing agency registered under the Exchange Act, and, in either case, a
successor depositary registered as a clearing agency under the Exchange Act is
not appointed by the Issuer within 90 days, (ii) at any time if the Issuer
determines that the Global Securities (in whole but not in part) should be
exchanged
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for Definitive Securities; provided, that (x) such exchange is required by
(A) any applicable law or (B) any event beyond the Issuer's control or (y)
payments of interest on any Global Security, Depositary Interest or
beneficial interest are, or would become, subject to any deduction or
withholding for taxes, (iii) at any time after the consummation of the
Exchange Offer, if the owner of a beneficial interest requests such exchange
in writing delivered to the Depositary and through the Depositary to the
Book-Entry Depositary and the Trustee, or (iv) if the Book-Entry Depositary
is at any time unwilling or unable to continue as Book-Entry Depositary and
a successor Book-Entry Depositary is not appointed by the Issuer within 90
days. Upon the occurrence of any of the preceding events, Definitive
Securities shall be issued in such names as the Book-Entry Depositary shall
instruct the Trustee based on the instructions of the Depositary.
(e) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of
the Book-Entry Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancelation as provided in this Article III. If any
Global Security is to be exchanged for other Securities or canceled in part,
or if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancelation as provided in this Article III or
(ii) the principal amount at maturity thereof shall be reduced or increased by
an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount at maturity of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means of
an appropriate adjustment made by the Book-Entry Depositary as directed by the
Trustee in such Book-Entry Depositary's book-entry system to the corresponding
Depositary Interest, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 3.05(b)
and as otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered (if applicable) in such names
as may be directed by, the Book-Entry Depositary or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the
Issuer shall
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promptly make available to the Trustee a reasonable supply of Securities
that are not in the form of Global Securities. The Trustee shall be entitled
to rely upon any order, direction or request of the Book-Entry Depositary or
the Depositary or any of their authorized representatives which is given or
made pursuant to this Article III if such order, direction or request is
given or made in accordance with the Deposit Agreement with respect to the
Book-Entry Depositary and the Applicable Procedures with respect to the
Depositary.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee, the
Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount at
maturity and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of written notice to the Issuer or the Trustee that such Security has
been acquired by a bona fide purchaser, the Issuer shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount at maturity
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture
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equally and proportionately with any and all other Securities 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 Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved. Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the bearer thereof on the Interest Payment Date in the case of a
Global Security in bearer form and, in the case of a Definitive Security, to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest (including Special Interest) on any Security
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall (a) bear
interest at the rate per annum stated in the form of Security included herein
(to the extent that the payment of such interest shall be legally
enforceable), and (b) forthwith cease to be payable to the bearer thereof on
such Interest Payment Date with respect to a Global Security in bearer form
and, with respect to a Definitive Security, to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and, in each case,
such Defaulted Interest may be paid by the Issuer, at its election in each
case, as provided in Clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted
Interest to the bearer of such Security on any Special Payment Date
(as defined below) with respect to any Global Security in bearer form
and, with respect to a Definitive Security, to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment, and at the same time the 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 prior to
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the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date 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 of such Special Record Date and, in the name and at the
expense of the Issuer, 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, 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, with respect to any Definitive Security, to the Persons
in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (b). As used in this Clause (a), "Special Payment
Date" means the date on which Defaulted Interest is paid to the
Holder.
(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 Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Issuer to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer, the Issuer, the
Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the
Trustee may treat the Person in whose name a Definitive Security is registered
as the owner of such Security and may treat the bearer of a Global Security as
the owner of such Security, in each case, for
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the purpose of receiving payment of principal of and premium, if any, and
(subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
the Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the
Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 3.09. Cancelation. All Securities surrendered for
payment, redemption, registration of transfer, exchange or pursuant to any
Offer to Purchase pursuant to Section 10.13 or 10.17 shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Issuer may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its standard procedures or as directed by an Issuer Order;
provided, however, that the Trustee shall not be required to destroy such
Securities.
SECTION 3.10. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months, provided, however, that Special Interest on Original Securities shall
be computed on the basis of a 365- or 366-day year, as the case may be, and
the number of days actually elapsed.
SECTION 3.11. CUSIP and ISIN Numbers. The Issuer in issuing
Securities may use "CUSIP and "ISIN" numbers (if then generally in use) in
addition to serial numbers; if so, the Trustee shall use such "CUSIP" and
"ISIN" numbers in addition to serial numbers in notices of redemption and
repurchase as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such "CUSIP" and
"ISIN" numbers either as printed on the Securities or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on
the serial or other identification numbers printed on the Securities, and any
such redemption or repurchase shall not be affected by any defect in or
omission of such "CUSIP" and "ISIN" numbers.
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ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee. Subject to the provisions of this
Article Four, the Guarantor hereby fully, unconditionally and irrevocably
guarantees to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the principal of, premium, if any, on and interest
(including Special Interest) on each Security, when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal of and interest,
if any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Issuer to the Holders or the
Trustee, all in accordance with the terms of such Security and this Indenture
and (ii) in the case of any extension of time of payment or renewal of any
Securities or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at Stated Maturity, by acceleration or otherwise. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, the benefit of
discussion, protest or notice with respect to any such Security or the debt
evidenced thereby and all demands whatsoever, and covenants that this
Securities Guarantee will not be discharged as to any such Security except by
payment in full of the principal thereof and interest thereon and as provided
in Section 12.01 and Section 12.02 (subject to Section 12.06). The maturity of
the obligations guaranteed hereby may be accelerated as provided in Article
Five for the purposes of this Article Four. In the event of any declaration of
acceleration of such obligations as provided in Article Five, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purpose of this Article Four. In addition, without limiting
the foregoing provisions, upon the effectiveness of an acceleration under
Article Five, the Trustee shall promptly make a demand for payment on the
Securities under the Guarantee provided for in this Article Four.
If the Trustee or the Holder of any Security is required by
any court or otherwise to return to the Issuer or the Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other similar
official acting in relation to the Issuer or the Guarantor, any amount paid to
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the Trustee or such Holder in respect of a Security, this Securities
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees, to the fullest extent that
it may lawfully do so, that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five hereof for
the purposes of this Securities Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed
hereby.
Until such time as the Securities are fully and finally
paid, including all interest, premium, principal and liquidated damages with
respect thereto, the Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Issuer that arise
from the existence, payment, performance or enforcement of its obligations
under this Securities Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of the Holders against the Issuer or any collateral which any such Holder or
the Trustee on behalf of such Holder hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to the Guarantor in violation of the
preceding sentence and the principal of, premium, if any, and accrued interest
on the Securities shall not have been paid in full, such amount shall be
deemed to have been paid to the Guarantor for the benefit of, and held in
trust for the benefit of, the Holders, and shall forthwith be paid to the
Trustee for the benefit of the Holders to be credited and applied upon the
principal of, premium, if any, and accrued interest on the Securities. The
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Securities pursuant to this Indenture and that the waivers
set forth in this Section 4.01 are knowingly made in contemplation of such
benefits.
The Guarantee set forth in this Section 4.01 shall not be
valid or become obligatory for any purpose with respect to a Security until
the certificate of
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authentication on such Security shall have been signed by or on behalf of
the Trustee.
SECTION 4.02. Obligations Unconditional. Subject to Section
4.05, nothing contained in this Article Four or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Guarantor and
the holders of the Securities, the obligation of the Guarantor, which is
absolute and unconditional, upon failure by the Issuer, to pay to the holders
of the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of the Guarantor, nor shall anything
herein or therein prevent the holder of any Securities or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.
Without limiting the foregoing, nothing contained in this
Article Four will restrict the right of the Trustee or the holders of the
Securities to take any action to declare the Guarantee to be due and payable
prior to the Stated Maturity of the Securities pursuant to Section 5.02 or to
pursue any rights or remedies hereunder.
SECTION 4.03. Notice to Trustee. The Guarantor shall give
prompt written notice to the Trustee of any fact known to the Guarantor which
would prohibit the making of any payment to or by the Trustee in respect of
the Securities Guarantee pursuant to the provisions of this Article Four.
ARTICLE V
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 any interest upon any Security
when it becomes due and payable, and continuance of such default for
a period of 30 days; or
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(b) default in the payment of the principal of (or premium,
if any, on) any Security when due; or
(c) default in the payment of principal and interest upon
any Security required to be purchased pursuant to an Offer to
Purchase pursuant to Sections 10.13 or 10.17; or
(d) default in the performance, or breach, of Section 8.01,
10.13 or 10.17; or
(e) default in the performance, or breach, of any covenant
or warranty of the Issuer or Guarantor in this Indenture or in any
Security (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee
by the Holders of at least 25% in aggregate principal amount at
maturity of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(f) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of indebtedness by the Guarantor, the
Issuer or any Subsidiary of the Guarantor or under any mortgage(s),
indenture(s) or instrument(s) under which there may be issued or by
which there may be secured or evidenced any indebtedness of such type
by the Guarantor, the Issuer or any Subsidiary of the Guarantor with
a principal amount then outstanding, individually or in the
aggregate, in excess of $10 million, whether such indebtedness now
exists or shall hereafter be created, which default or defaults shall
constitute a failure to pay in excess of $10 million of the principal
of such indebtedness when due at the final maturity thereof, or shall
have resulted in excess of $10 million of indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable; or
(g) a final judgment or final judgments for the payment of
money are entered against the Guarantor, the Issuer or any Subsidiary
of the Guarantor in an aggregate amount in excess of $10 million (net
of indemnities and funds actually received or to be
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received within 90 days of such judgment) by a court or courts of
competent jurisdiction, which judgments remain undischarged or
unbonded for a period (during which execution shall not be
effectively stayed) of 60 days after the right to appeal all such
judgments has expired; or
(h) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Guarantor, the
Issuer or any Significant Subsidiaries in an involuntary case or
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Guarantor, the Issuer or any Significant Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Guarantor, the Issuer or any Significant
Subsidiaries under any applicable law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Guarantor, the Issuer or any Significant
Subsidiaries or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(i) the commencement by the Guarantor, the Issuer or any
Significant Subsidiaries of a voluntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Guarantor, the Issuer or any Significant
Subsidiaries in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable law, or
the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Guarantor, the Issuer or any Significant Subsidiaries or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its
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debts generally as they become due, or the taking of corporate action
by the Guarantor, the Issuer or any Significant Subsidiaries in
furtherance of any such action.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified
in Section 5.01(h) or (i)) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount at
maturity of the Outstanding Securities may declare the principal amount at
maturity of all the Securities to be due and payable immediately, by a notice
in writing to the Issuer (and to the Trustee if given by Holders), and upon
any such declaration such Accreted Value and any accrued interest shall become
immediately due and payable. If an Event of Default specified in Section
5.01(h) or (i) occurs, the Accreted Value of and any accrued interest on the
Securities then Outstanding shall ipso facto become immediately due and
payable without any declaration or other Act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due based
on acceleration has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount at maturity of
the Outstanding Securities, by written notice to the Issuer and the Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the Accreted Value of (and premium, if any, on)
any Securities which have become due otherwise than by such
declaration of acceleration (including any Securities
required to have been purchased on the Purchase Date
pursuant to an Offer to Purchase made by the Issuer) and
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
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expenses, disbursements and advances of the Trustee, its
agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
Accreted Value of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Issuer covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to
an Offer to Purchase made by the Issuer, at the Purchase Date
thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at
the rate provided by the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out
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of the property of the Issuer or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of
any judicial proceeding relative to the Issuer (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. In particular,
the Trustee shall be authorized to collect and receive any moneys, securities
or other property payable or deliverable upon the exchange of the Securities
or upon any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each 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 to the
Trustee 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.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding
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relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 5.06. 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 (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.07; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 5.07. Limitation on Suits. No Holder of any
Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate
principal amount at maturity of the Outstanding Securities
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered and, if
requested, provided to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such
notice, request and offer and, if requested, provision of
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount at maturity of
the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption,
on the Redemption Date or, in the case of an Offer to Purchase made by the
Issuer and required to be accepted as to such Security, on the Purchase 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.
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 and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Issuer, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee
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or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority
in principal amount at maturity of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal
liability (as determined in the sole discretion of the Trustee), and
(2) 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 at maturity of the
Outstanding Securities may on behalf of the Holders of all the Securities by
written notice to the Trustee waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security (including any Security which is required
to have been purchased pursuant to an Offer to Purchase which has
been made by the Issuer), or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected or
(3) arising from failure to purchase any Security tendered
pursuant to Sections 10.13 and 10.17 of this Indenture.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Issuer or the Guarantor; further
provided, that 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 more than 10% in aggregate principal amount at maturity of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or premium, if any, or
interest on any Security on or after the respective due dates expressed in
such Security.
SECTION 5.15. Waiver of Stay or Extension Laws. Each of the
Issuer and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and each of the Issuer and
the Guarantor (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.
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ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants, duties or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in
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good faith in accordance with the direction of the Holders of a
majority in principal amount at maturity of the Outstanding
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under
this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
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.
SECTION 6.02. Notice of Defaults. The Trustee shall give
the Holders notice of any default hereunder known to the Trustee as and to the
extent provided by the Trust Indenture Act; provided, however, that in the
case of any default of the character specified in Section 5.01(e), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be
completely 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;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by a Issuer Request or Issuer Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, request
from the Issuer and be completely protected in relying upon an
Officers' Certificate received in response to such request;
(d) the Trustee may consult with counsel of its selection
and the written 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;
(e) 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 against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction
reasonably satisfactory to the Trustee;
(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, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee may (but shall have no
obligation to) make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer or
the Guarantor, 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 or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by
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it in accordance with the direction of Holders of Outstanding
Securities as provided in Sections 5.02, 5.12 and 5.13 hereof; and
(i) for all purposes under this Indenture, the Trustee shall
not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates 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 Securities or the Securities
Guarantee. The Trustee shall not be accountable for the use or application
by the Issuer of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any
Paying Agent, any Security Registrar or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with
the Issuer or the Guarantor with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Issuer.
SECTION 6.07. Compensation and Reimbursement. The Issuer
and the Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of enforcing this Indenture against the Issuer or the
Guarantor (including, without limitation, this Section 6.07) and of
defending itself against any claim (whether asserted by any Holder or
the Issuer or the Guarantor) or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
provisions of this Section 6.07 shall survive any termination of this
Indenture and the resignation or removal of the Trustee.
As security for the performance of the obligations of the
Issuer under this Section 6.07, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee,
except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities. The Trustee's right to receive
payment of any amounts due under this Section 6.07 shall not be subordinate to
any other liability or indebtedness of the Issuer (even though the Securities
may be so subordinated).
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(h) or Section
5.01(i), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture or the earlier resignation or termination of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests. If
the Trustee has or shall acquire a
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conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility .
There shall at all times be a Trustee hereunder which shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the Borough of Manhattan, the City of New York, New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of a 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 Person 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, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11, at
which time the retiring Trustee shall be fully discharged from its obligations
hereunder.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount at maturity of the Outstanding
Securities, delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the
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Issuer or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the
Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, the 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 at
maturity of the Outstanding Securities 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 and
accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.06. 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 Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Issuer or the successor Trustee, such retiring Trustee shall, upon payment
of all sums owing to the Trustee under Section 6.07, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Issuer
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided that such corporation
shall be otherwise qualified and eligible under this Article. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against
Issuer or Guarantor. If and when the Trustee shall be or become a creditor of
the Issuer or Guarantor (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture Act
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regarding the collection of claims against the Issuer or Guarantor (or any
such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Issuer and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent; provided, such corporation shall be otherwise eligible under this
Section.
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An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Issuer. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Issuer. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment in the manner provided in Section 1.06 to all
Holders of Securities. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.07.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK, as Trustee,
by
------------------------,
as Authenticating Agent
by
-------------------------
Authorized Signatory
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SECTION 6.15. Withholding Taxes. Notwithstanding any other
provision of this Agreement, the Trustee, as agent for the Issuer and the
Guarantor, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Securities or the
Securities Guarantee any and all withholding taxes applicable thereto as
required by law. The Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Securities or the Securities Guarantee, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on behalf
of the Holders of the Securities, that it will furnish to the Holders of the
Securities such forms or certificates as are necessary or appropriate to
provide the information described in Section 10.09(c)(i) hereof or make the
declaration or claim described in Section 10.09(c)(ii) hereof, that it will
file any necessary withholding tax returns or statements when due, and that,
as promptly as possible after the payment thereof, it will deliver to each
Holder of a Security appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such Holders may
reasonably request from time to time.
In the event that the Trustee is also acting as Paying
Agent, Authenticating Agent, transfer agent, or Registrar hereunder, the
rights and protections afforded to the Trustee pursuant to this Article Six
shall also be afforded to such Paying Agent, Authenticating Agent, transfer
agent, or Registrar.
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses
of Holder. The Issuer will furnish or cause to be furnished to the Trustee
(a) 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
(b) at such other times as the Trustee may request in
writing, within 30 days after the 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;
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excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) Within 30 days after
October 1 of each year, commencing with the first October 1 following the
first issuance of Securities pursuant to Section 3.01, if required by Section
3.13(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 3.13(c) of the Trust Indenture Act, a brief report dated as of such
October 1 with respect to any of the events specified in said Section 3.13(a)
which may have occurred since the later of the immediately preceding October 1
and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 3.13(b) of the Trust Indenture Act and Section 6.02 hereof at the
times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the persons required by Sections 3.13(c) and 3.13(d) of the
Trust Indenture Act.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Issuer. The
Issuer
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will promptly notify the Trustee when the Securities are listed on any
stock exchange.
SECTION 7.04. Reports by Issuer and Guarantor. Each of the
Guarantor and the Issuer shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act and in the manner
set forth in Section 10.18.
SECTION 7.05. Officers' Certificate with Respect to Change
in Interest Rates. Within five days after any Step-Up or Step-Down Date, the
Issuer shall deliver an Officers' Certificate to the Trustee stating the new
interest rate and the date on which it became effective.
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain Sales of
Assets. Neither the Guarantor nor the Issuer may, in a single transaction or
a series of related transactions, (i) consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the
Guarantor or the Issuer, or (ii) directly or indirectly, transfer, sell, lease
or otherwise dispose of all or substantially all of its assets to any other
Person, unless:
(1) in a transaction in which the Guarantor or the Issuer,
as applicable, does not survive or in which the Guarantor or the
Issuer sells, leases or otherwise disposes of all or substantially
all of its assets to any other Person (other than, in any such case,
the Guarantor or the Issuer), the successor entity to the Guarantor
or the Issuer is organized under the laws of the United States of
America or any State thereof or the District of Columbia, the British
Virgin Islands, Cayman Islands, The Netherlands, Ireland or Jersey
and shall expressly assume, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, all of
the Guarantor's or the Issuer's obligations under the Indentures;
(2) immediately before and after giving effect to such
transaction and treating any Debt which becomes an obligation of the
Guarantor or a Subsidiary as a result of such transaction as having
been Incurred by the
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Guarantor or such Subsidiary at the time of the transaction, no
Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Guarantor (or other successor entity to
the Guarantor) is equal to or greater than that of the Guarantor
immediately prior to the transaction;
(4) if, as a result of any such transaction, property or
assets of the Guarantor or any Subsidiary would become subject to a
Lien prohibited by Section 10.15, the Guarantor or the successor
entity to the Guarantor shall have secured the Securities as required
by said covenant; and
(5) in the event that the continuing Person is incorporated
in a jurisdiction other than the United States or the jurisdiction in
which such Person was incorporated immediately prior to such
transaction, (A) the Issuer delivers to the Trustee an Opinion of
Counsel stating that the obligations of the continuing Person under
the Indenture are enforceable under the laws of the new jurisdiction
of its incorporation to the same extent as the obligations of the
Issuer or the Guarantor, as the case may be, under the Indenture
immediately prior to such transaction; (B) the continuing Person
agrees in writing to submit to jurisdiction and appoints an agent for
the service of process, each under terms substantially similar to the
terms contained in the Indenture with respect to the Issuer or the
Guarantor, as the case may be; (C) the continuing Person agrees in
writing to pay Additional Amounts as provided under this Indenture
under Section 10.09 with respect to the Issuer or the Guarantor, as
the case may be, except that such Additional Amount shall relate to
any withholding tax whatsoever regardless of any change of law
(subject to exceptions substantially similar to those contained in
Section 10.09); (D) the Board of Directors of the Guarantor
determines in good faith that such transaction will have no material
adverse effect on any Holder and a Board Resolution to that effect is
delivered to the Trustee; and (E) the principal purpose of the
continuing Person being incorporated in such jurisdiction is to
obtain tax benefits for the
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Guarantor, the Issuer, their direct and indirect stockholders or
the Holders.
SECTION 8.02. Successor Substituted. Upon any consolidation
of the Issuer with, or merger of the Issuer with or into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Issuer is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Issuer and the Guarantor,
each when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Issuer or the Guarantor and the assumption by any such successor of
the covenants of the Issuer or the Guarantor herein and in the
Securities; or
(2) to add to the covenants of the Issuer or the Guarantor
for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Issuer or the Guarantor; or
(3) to secure the Securities pursuant to the requirements of
Section 10.15 or otherwise; or
(4) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to comply with any
requirement of the Commission in order to effect qualification of
this Indenture under the Trust Indenture Act in connection with the
issuance of Exchange Securities or Registered Securities or
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thereafter to maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided that
such action pursuant to this Clause (5) shall not adversely affect
the interests of the Holders in any material respect; or
(6) to provide for uncertificated Securities in addition to
or in place of certified Securities.
SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the written consent of the Holders of not less than a majority
in aggregate principal amount at maturity of the Outstanding Securities, by
Act of said Holders delivered to the Issuer and the Trustee, and consistent
with Section 5.13, the Issuer and the Guarantor, each when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
written consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the Accreted
Value thereof or the rate of interest thereon or any premium payable
thereon, or change the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date) or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase Date, or
(2) reduce the percentage in principal amount at maturity of
the Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions
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of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.20, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) following the making of an Offer with respect to an
Offer to Purchase pursuant to Sections 10.13 or 10.17, modify the
provisions of this Indenture with respect to such Offer to Purchase
in a manner materially adverse to such Holder, or
(5) release the Guarantor from its Securities Guarantee.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures .
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
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SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture 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. If the Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and
the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and
Interest. The Issuer will duly and punctually pay the principal of and
premium, if any, and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Issuer
will maintain in the Borough of Manhattan, the City of New York, New York, an
office or agency where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in the location,
of 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 the Borough of Manhattan, the City of
New York, New York) where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
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
Borough of Manhattan, the City of New York, New York for such purposes. The
Issuer will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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SECTION 10.03. Money for Security 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 (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
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 in writing of its action or failure so to act. As provided
in Section 5.04, upon any bankruptcy or reorganization proceeding relative to
the Issuer, the Trustee shall serve as the Paying Agent for the Securities.
Whenever the Issuer shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee in writing of its action or failure so to
act. Upon any bankruptcy or reorganization proceeding relative to the Issuer,
the Trustee shall serve as the Paying Agent for the Securities.
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 shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Issuer (or any other obligor upon the Securities) in the making of
any payment of principal (and premium, if any) or interest;
(3) 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
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating
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to the duties, rights and obligations 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 shall 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 (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Issuer on Issuer Request, or (if then held by
the Issuer) shall be discharged from such trust; and the Holder of such
Security shall 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, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, New
York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.04. Existence. Subject to Article Eight, the
Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect the existence, rights (charter and statutory)
and franchises of the Guarantor, the Issuer and each of the Restricted
Subsidiaries; provided, however, that the Guarantor shall not be required to
preserve any such right or franchise if the Guarantor shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Guarantor, the Issuer or the Restricted Subsidiaries and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 10.05. Maintenance of Properties.
The Guarantor will cause all properties used or useful in the conduct of its
business or the business of the Issuer or any Restricted Subsidiary 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 Guarantor 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 shall prevent the
Guarantor from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the
Guarantor, desirable in the conduct of its business or the business of the
Issuer or any Restricted Subsidiary and not disadvantageous in any material
respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims. The
Guarantor will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Guarantor or the Issuer or any
Restricted Subsidiaries or upon the income, profits or property of the
Guarantor or the Issuer or any Restricted Subsidiaries, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Guarantor or the Issuer or any Restricted
Subsidiaries; provided, however, that the Guarantor shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 10.07. Maintenance of Insurance. The Guarantor
shall, and shall cause the Issuer and the Restricted Subsidiaries to, keep at
all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Guarantor to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 10.08. Limitation on Consolidated Debt. The
Guarantor may not, and may not permit any Restricted Subsidiary of the
Guarantor to, Incur any Debt (other than the Securities and the Securities
Guarantee) unless the ratio of (i) the aggregate consolidated principal amount
of Debt (which is defined to include the accreted value of any Debt issued at
a discount) of the Guarantor outstanding as of the most recent available
quarterly or annual balance sheet, after giving pro forma effect to the
Incurrence of
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such Debt and any other Debt Incurred since such balance sheet date and the
receipt and application of the proceeds thereof, to (ii) four (4) times the
Consolidated Cash Flow Available for Fixed Charges for the most recent
fiscal quarter next preceding the Incurrence of such Debt for which
consolidated financial statements are available, determined on a pro forma
basis as if any such Debt had been Incurred and the proceeds thereof had
been applied at the beginning of such recent fiscal quarter, would be less
than 7.0 to 1.0 for such period.
Notwithstanding the foregoing limitation, the Guarantor and
any Restricted Subsidiary may Incur the following:
(i) Debt under Credit Facilities in an aggregate principal
amount at any one time not to exceed $200 million, and any renewal,
extension, refinancing or refunding thereof in an amount which,
together with any principal amount remaining outstanding under all
Credit Facilities, does not exceed the aggregate principal amount
outstanding under all Credit Facilities immediately prior to such
renewal, extension, refinancing or refunding;
(ii) Debt owed by the Guarantor to any Restricted Subsidiary
of the Guarantor or Debt owed by a Restricted Subsidiary of the
Guarantor to the Guarantor or a Restricted Subsidiary of the
Guarantor; provided, however, that upon either (x) the transfer or
other disposition by such Restricted Subsidiary or the Guarantor of
any Debt so permitted to a Person other than the Guarantor or another
Restricted Subsidiary of the Guarantor or (y) such Restricted
Subsidiary ceasing to be a Restricted Subsidiary, the provisions of
this clause (ii) shall no longer be applicable to such Debt and such
Debt shall be deemed to have been Incurred at the time of such
transfer or other disposition;
(iii) Debt Incurred to renew, extend, refinance or refund
(each, a "refinancing") (x) Debt outstanding at the date hereof
(after giving effect to the Equity Clawback) or (y) Incurred pursuant
to the first paragraph of this Section, or clause (vi) or (vii) of
this paragraph or (z) the Securities issued on the date hereof or
Securities exchanged therefore, in each case, in an aggregate
principal amount not to exceed the aggregate principal amount of and
accrued interest on the Debt so refinanced plus the amount of any
premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt so refinanced or the amount of any
premium reasonably determined by the Guarantor as necessary to
accomplish such refinancing
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by means of a tender offer or privately negotiated repurchase,
plus the expenses of the Guarantor or the Restricted Subsidiary
effecting such refinancing incurred in connection with such
refinancing; provided, however, that Debt the proceeds of which
are used to refinance the Securities or Debt which is pari passu
to the Securities and the Security Guarantee or Debt which is
subordinate in right of payment to the Securities and the Security
Guarantee shall only be permitted if (A) in the case of any
refinancing of the Securities or Debt which is pari passu to the
Securities and the Security Guarantee, the refinancing Debt is
made pari passu or subordinated to the Securities and the Security
Guarantee, and, in the case of any refinancing of Subordinated
Debt, the refinancing Debt constitutes Subordinated Debt and (B)
in any case, the refinancing Debt by its terms, or by the terms of
any agreement or instrument pursuant to which such Debt is issued,
does not have a final stated maturity prior to the final stated
maturity of the Debt being refinanced, and the Average Life of
such new Debt is at least equal to the remaining Average Life of
the Debt being refinanced (assuming that such Debt being
refinanced had a final stated maturity three months later than its
actual final stated maturity);
(iv) Debt in an aggregate principal amount not in excess of
(A) two (2) times the aggregate amount of the Guarantor's Incremental
Paid-in Capital minus (B) $165 million;
(v) Debt in an aggregate principal amount not in excess of
80% of the aggregate amount of accounts receivable set forth on the
most recent unaudited quarterly or audited annual financial
statements of the Guarantor and its consolidated subsidiaries filed
with the Commission;
(vi) Purchase Money Debt, which is incurred for the
construction, acquisition and improvement of Telecommunications
Assets, provided that the amount of such Purchase Money Debt does not
exceed the cost of the construction, acquisition or improvement of
the applicable Telecommunications Assets;
(vii) Debt consisting of Permitted Interest Rate and Currency
Protection Agreements; and
(viii) Debt not otherwise permitted to be Incurred pursuant
to clauses (i) through (vii) above, which, together with any other
outstanding Debt Incurred pursuant to this clause (viii), has an
aggregate
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principal amount not in excess of $50 million at any time
outstanding.
For purposes of determining compliance with this Section,
with respect to any item of Debt, (x) in the event that such item of Debt
meets the criteria of more than one of the types of Debt the Guarantor or a
Restricted Subsidiary is permitted to Incur pursuant to the foregoing clauses
(i) through (viii), the Guarantor shall have the right, in its sole
discretion, to classify such item of Debt and shall only be required to
include the amount and type of such Debt under the clause permitting the Debt
as so classified and (y) any other obligation of the obligor on such Debt (or
of any other Person who could have Incurred such Debt under this Section)
arising under any Guarantee, Lien or letter of credit supporting such Debt
shall be disregarded to the extent that such Guarantee, Lien or letter of
credit secures the principal amount of such Debt.
For purposes of determining compliance with any
Dollar-denominated restriction on the Incurrence of Debt denominated in a
foreign currency, the Dollar-equivalent principal amount of such
foreign-currency-denominated Debt Incurred pursuant thereto shall be
calculated based on the relevant currency exchange rate in effect on the date
that such foreign-currency-denominated Debt was Incurred, in the case of term
debt, or first committed, in the case of revolving credit debt; provided that
(x) the Dollar-equivalent principal amount of any such Debt outstanding on the
date hereof shall be calculated based on the relevant currency exchange rate
in effect on the date hereof and (y) if such Debt is Incurred to refinance
other Debt denominated in a foreign currency, and such refinancing would cause
the applicable Dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such Dollar denominated restriction shall be deemed not to have been exceeded
so long as the principal amount of such refinancing Debt does not exceed the
principal amount of such Debt being refinanced. The principal amount of any
Debt Incurred to refinance other Debt, if Incurred in a different currency
from the Debt being refinanced, shall be calculated based on the currency
exchange rate applicable to the currency in which such respective Debt is
denominated that is in effect on the date of such refinancing.
SECTION 10.09. Additional Amounts. (a) Payments made by the
Issuer or the Guarantor pursuant to the Securities or the Securities Guarantee
will be made without withholding or deduction for taxes unless required by
law. In the event of (x) any change that becomes effective after the date
hereof in the laws of the U.K. or Bermuda or of any political subdivision or
taxing authority thereof or therein
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or any change in the interpretation or administration thereof or (y) a
failure by the Issuer to list and maintain a listing of the Securities on a
"recognized stock exchange" (within the meaning of Section 841 of the U.K.
Income and Corporation Taxes Act 1988) prior to the first date upon which
interest is required to be paid hereunder (a "Listing Failure"), the effect
of which is to require the withholding or deduction by the Issuer or the
Guarantor pursuant to the Securities or the Securities Guarantee,
respectively, of any amount for taxes that would not have been required to
be withheld or deducted absent such change or Listing Failure, as the case
may be, the Issuer or the Guarantor will pay, to the extent it may then
lawfully do so, such additional amounts ("Additional Amounts") as may be
necessary in order that every net payment of the principal of and interest
on the Securities, after deduction for withholding for or on account of any
future tax, assessment or other governmental charge will not be less than
the amount provided for in the Securities to be then due and payable;
provided, however, that the foregoing obligation to pay Additional Amounts
shall not apply in respect of:
(i) any tax, withholding, assessment or other governmental
charge which would not have been imposed but for (x) the existence of
any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such holder, if such holder is an estate,
trust, partnership or corporation) and the U.K. or Bermuda or any
political subdivision or taxing authority thereof including, without
limitation, such holder (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen or
resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment
therein or (y) the presentation of a Security or a Securities
Guarantee (where presentation is required) for payment on a date more
than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for,
whichever occurs later, except for Additional Amounts with respect to
Taxes that would have been imposed had the holder presented the
Security for payment within such 30-day period;
(ii) any estate, inheritance, gift, sale, transfer or
personal property tax;
(iii) any tax, assessment or other governmental charge that
is withheld by reason of the failure to timely comply by the holder
or the beneficial owner of the Security with a request in writing of
the Issuer or
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the Guarantor (which request shall be furnished to the Trustee)
(x) to provide information concerning the nationality, residence
or identity of the holder or such beneficial owner or (y) to make
any declaration or other similar claim or satisfy any information
or reporting requirement, which, in the case of (x) or (y), is
required or imposed by a statute, treaty, regulation or
administrative practice of the taxing or domicile jurisdiction as
a precondition to exemption from or reduction of all or part of
such tax, assessment or other governmental charge; provided,
however, that this clause (iii) shall not apply to limit the
Issuer's or Guarantor's obligation to pay Additional Amounts if
the completing and filing of the information described in
subclause (x) or the declaration or other claim described in
subclause (y) would be materially more onerous in form, in
procedure or in substance of information disclosed, in comparison
to the information reporting requirements imposed under U.S. tax
law with respect to Forms 1001, W-8 and W-9; or
(iv) any tax, withholding, assessment or other governmental
charge resulting from a Listing Failure with respect to any Security
issued in the form of a Definitive Security pursuant to the terms of
the Deposit Agreement and this Indenture; or
(v) any combination of items (i), (ii), (iii) and (iv)
above; nor shall Additional Amounts be paid with respect to any
payment of the principal of, or any interest on, any Security or
Securities Guarantee to any holder who is not the sole beneficial
owner of such Security or Securities Guarantee or is a fiduciary or
partnership, but only to the extent that a beneficial owner, a
beneficiary or a settlor with respect to a fiduciary or a member of
the partnership would not have been entitled to the payment of the
Additional Amount had the beneficial owner, beneficiary, settlor or
member of such partnership received directly its beneficial or
distributive share of the payment.
At least 30 days prior to each date on which any payment
under or with respect to the Securities is due and payable, if the Issuer or
the Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer or the Guarantor will deliver to the Trustee an Officer's
Certificate stating the fact that such Additional Amounts will be payable and
the amounts so payable and will set forth such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders on the payment
date. Whenever in this Indenture there is mentioned, in any context, the
payment of principal (and
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premium, if any), Redemption Price, interest or any other amount payable
under or with respect to any Security, such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.
(b) The Issuer or the Guarantor shall, upon written request
of a Holder and provided that reasonable supporting documentation is provided,
reimburse such Holder for the amount of any taxes levied or imposed by the
U.K. or Bermuda and paid by such Holder as a result of any payment made under
or with respect to the Securities or under the Securities Guarantee, but only
to the extent that the Issuer or the Guarantor would have been obligated to
pay Additional Amounts in respect of such taxes if such taxes had been imposed
by withholding or deduction from payments made under or with respect to the
Securities or the Securities Guarantee.
(c) The Issuer shall pay any stamp, issue, registration,
documentary, value added or other similar taxes and other duties (including
interest and penalties) payable in the U.K. or Bermuda and in the United
States in respect of the creation, issue, offering, execution or enforcement
of the Securities, the Securities Guarantee or any documentation with respect
thereto.
SECTION 10.10. Limitation on Restricted Payments. The
Guarantor (i) may not, and will not permit any Restricted Subsidiary, directly
or indirectly, to declare or pay any dividend, or make any distribution, in
respect of its Capital Stock or to the holders thereof, excluding (x) any
dividends or distributions payable solely in shares of its Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
acquire its Capital Stock (other than Disqualified Stock), (y) any dividends
paid to the Guarantor or a Restricted Subsidiary, or (z) pro rata dividends
paid on shares of Common Stock of Restricted Subsidiaries, (ii) may not, and
may not permit any Restricted Subsidiary to, purchase, redeem, or otherwise
retire or acquire for value (a) any Capital Stock of the Guarantor or any
Related Person of the Guarantor (other than a permitted refinancing) or (b)
any options, warrants or rights to purchase or acquire shares of Capital Stock
of the Guarantor or any Related Person of the Guarantor or any securities
convertible or exchangeable into shares of Capital Stock of the Guarantor or
any Related Person of the Guarantor (other than a permitted refinancing),
(iii) may not make, or permit any Restricted Subsidiary to make, any
Investment, except for Permitted Investments, and (iv) may not, and may not
permit any Restricted Subsidiary to, redeem, defease, repurchase, retire or
otherwise acquire or
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retire for value, prior to any scheduled maturity, repayment or sinking fund
payment, Debt of the Guarantor or the Issuer which is subordinate in right
of payment to the Securities or the Securities Guarantee (each of clauses
(i) through (iv) being a "Restricted Payment") if: (1) an Event of Default,
or an event that with the passing of time or the giving of notice, or both,
would constitute an Event of Default, shall have occurred and be continuing,
or (2) except with respect to Investments, upon giving effect to such
Restricted Payment, the Guarantor could not Incur at least $1.00 of
additional Debt pursuant to the first paragraph of Section 10.08, or (3)
upon giving effect to such Restricted Payment, the aggregate of all
Restricted Payments from the date hereof exceeds the sum of: (a)(x)
Consolidated Cash Flow Available for Fixed Charges since the end of the last
full fiscal quarter prior to the date hereof through the last day of the
last full fiscal quarter ending immediately preceding the date of such
Restricted Payment (the "Calculation Period") minus (y) 1.5 times
Consolidated Interest Expense for the Calculation Period plus (b) an amount
equal to the net reduction in Investments (other than reductions in
Permitted Investments) in any Person resulting from payments of interest on
Debt, dividends, repayments of loans or advances, or other transfers of
assets, in each case to the Guarantor 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 are included in the
calculation of Consolidated Cash Flow Available for Fixed Charges for the
Calculation Period), or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the definition
of Investment), not to exceed, in each case, the amount of Investments
previously made by the Guarantor or any Restricted Subsidiary in such Person
or Unrestricted Subsidiary plus (c) an amount equal to the aggregate net
proceeds received after the date hereof, including the fair market value of
property other than cash (determined in good faith by the Board of Directors
as evidenced by a resolution of the Board of Directors filed with the
Trustee), as capital contributions to the Guarantor or from the issuance
(other than to a Subsidiary) of Capital Stock (other than Disqualified
Stock) of the Guarantor and warrants, rights or options on Capital Stock
(other than Disqualified Stock) of the Guarantor and the principal amount at
maturity of Debt of the Guarantor or any Restricted Subsidiary that has been
converted into Capital Stock (other than Disqualified Stock and other than
by a Subsidiary) of the Guarantor after the date hereof plus (d) $30
million.
Notwithstanding the foregoing, (i) the Guarantor may pay any
dividend on Capital Stock of any class of the Guarantor within 60 days after
the declaration thereof if,
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on the date when the dividend was declared, the Guarantor could have paid
such dividend in accordance with the foregoing provisions, (ii) the
Guarantor may make acquisitions of a minority equity interest in entities
engaged in the Telecommunications Business; provided that (A) the
acquisition of a majority equity interest in such entities is not then
permitted or practicable under applicable law without regulatory consent or
change of law, (B) the Board of Directors of the Guarantor determines in
good faith that there is a substantial probability that such approval or
change of law will be obtained, (C) the Guarantor or one of its Restricted
Subsidiaries has the right to acquire Capital Stock representing a majority
of the voting power of the Voting Stock of such entity upon receipt of
regulatory consent or change of law and does acquire such Voting Stock
reasonably promptly upon receipt of such consent or change of law and (D) in
the event that such consent or change of law has not been obtained within 18
months of funding such Investment, the Guarantor or one of its Restricted
Subsidiaries has the right to sell such minority equity interest to the
Person from whom it acquired such interest, for consideration consisting of
the consideration originally paid by the Guarantor and its Restricted
Subsidiaries for such minority equity interest; (iii) the Guarantor may
repurchase any shares of its Common Stock or options to acquire its Common
Stock from Persons who were formerly directors, officers or employees of the
Guarantor or any of its Subsidiaries, provided that the aggregate amount of
all such repurchases made pursuant to this clause (iii) shall not exceed $6
million, plus the aggregate cash proceeds received by the Guarantor since
the date hereof from issuances of its Common Stock or options to acquire its
Common Stock to directors, officers and employees of the Guarantor or any of
its Subsidiaries, (v) the Guarantor or a Restricted Subsidiary may redeem,
defease, repurchase, retire or otherwise acquire or retire for value Debt of
the Guarantor or the Issuer which is subordinated in right of payment to the
Securities or the Security Guarantees, as the case may be, in exchange for,
or out of the proceeds of a substantially concurrent sale (other than to a
Subsidiary) of, Capital Stock (other than Disqualified Stock of the
Guarantor) or in a refinancing that satisfies the requirements of clause
(iii) of the second paragraph of Section 10.08 and (vi) the Guarantor and
its Subsidiaries may retire or repurchase any Capital Stock of the Guarantor
or of any Subsidiary of the Guarantor in exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a Subsidiary of
the Guarantor) of, Capital Stock (other than Disqualified Stock) of the
Guarantor or any Subsidiary.
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SECTION 10.11. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Guarantor may not, and
may 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 on the ability of any Restricted Subsidiary of the
Guarantor (i) to pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the Guarantor or any
other Restricted Subsidiary of the Guarantor or pay any Debt or other
obligation owed to the Guarantor or any other Restricted Subsidiary; (ii) to
make loans or advances to the Guarantor or any other Restricted Subsidiary; or
(iii) to transfer any of its property or assets to the Guarantor or any other
Restricted Subsidiary.
Notwithstanding the foregoing, the Guarantor may, and may
permit any Restricted Subsidiary to, suffer to exist any such encumbrance or
restriction (a) pursuant to any agreement in effect on the date hereof; (b)
pursuant to an agreement relating to any Acquired Debt, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person so acquired and was not Incurred in
anticipation of such Person being acquired; (c) pursuant to an agreement
effecting a renewal, refunding or extension of Debt Incurred pursuant to an
agreement referred to in clause (a) or (b) above; provided, however, that the
provisions contained in such renewal, refunding or extension agreement
relating to such encumbrance or restriction are no more restrictive in any
material respect than the provisions contained in the agreement the subject
thereof; (d) in the case of clause (iii) in the above paragraph, contained in
any security agreement (including a Capital Lease Obligation) securing Debt of
the Guarantor or a Restricted Subsidiary otherwise permitted hereunder, but
only to the extent such restrictions restrict the transfer of the property
subject to such security agreement; (e) in the case of clause (iii) in the
above paragraph, with respect to customary nonassignment provisions entered
into in the ordinary course of business in leases and other agreements; (f)
with respect to a Restricted Subsidiary of the Guarantor imposed pursuant to
an agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided that (x) the consummation of such transaction would not
result in an Event of Default or an event that, with the passing of time or
the giving of notice or both, would constitute an Event of Default, (y) such
restriction terminates if such transaction is not consummated and (z) the
consummation or abandonment of such transaction occurs within one year of the
date such agreement was entered into; (g) pursuant to applicable law or
required by any regulatory authority
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having jurisdiction over the Guarantor or any Subsidiary; (h) pursuant to
this Indenture and the Securities; (i) constituting a Lien otherwise
permitted pursuant to Section 10.15; and (j) other encumbrances or
restrictions that are not materially more restrictive than customary
provisions in comparable financings provided that each of the Issuer and the
Guarantor provides an Officer's Certificate to the Trustee to the effect
that in the opinion of the signers of such certificate such encumbrances or
restrictions will not materially impact the Issuers' and the Guarantors'
ability to make scheduled payments of interest and principal under the
Securities.
SECTION 10.12. Limitation on Transactions with Affiliates
and Related Persons. The Guarantor 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
Related Person or with any Affiliate of the Guarantor or any Restricted
Subsidiary, except upon fair and reasonable terms no less favorable to the
Guarantor or such Restricted Subsidiary than could be obtained, at the time of
such transaction or, if such transaction is pursuant to a written agreement,
at the time of the execution of the agreement providing therefor, in a
comparable arm's-length transaction with a Person that is not a Related Person
or an Affiliate.
The foregoing limitation does not limit, and shall not apply
to (i) transactions (A) approved by a majority of the disinterested members of
the Board of Directors or (B) for which the Guarantor or a Restricted
Subsidiary delivers to the Trustee a written opinion of a nationally
recognized investment banking firm (or a subsidiary or affiliate thereof) in
the United States stating that the transaction is fair to the Guarantor or
such Restricted Subsidiary from a financial point of view; (ii) any
transaction solely between the Guarantor and any of its Wholly Owned
Restricted Subsidiaries or solely between Wholly Owned Restricted
Subsidiaries; and (iii) any payments or other transactions pursuant to any
tax-sharing agreement between the Guarantor and any other Person with which
the Guarantor files a consolidated tax return or with which the Guarantor is
part of a consolidated group for tax purposes. Notwithstanding the foregoing,
any transaction covered by the first paragraph of this Section and not covered
by clauses (ii) through (iii) of this paragraph must be approved or determined
to be fair in the manner provided for in clause (i)(A) or (B) above unless the
aggregate amount of such transaction is less than $5 million in value.
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SECTION 10.13. Limitation on Asset Dispositions. (a) The
Guarantor may not, and may not permit any Restricted Subsidiary of the
Guarantor to, make any Asset Disposition in one or more related transactions
unless: (i) the Guarantor or the Restricted Subsidiary, as the case may be,
receives consideration for such disposition at least equal to the fair market
value for the assets sold or disposed of as determined by the Board of
Directors in good faith and, in the case of an Asset Disposition in an amount
greater than $5 million, evidenced by a resolution of the Board of Directors
filed with the Trustee; and (ii) at least 75% of the consideration for such
disposition consists of (1) cash or readily marketable cash equivalents or the
assumption of Debt of the Guarantor (other than Debt that is subordinated to
the Securities) or of a Restricted Subsidiary and release from all liability
on the Debt assumed, or (2) Telecommunications Assets. In the event and to the
extent that the Net Available Proceeds received by the Guarantor or any of its
Restricted Subsidiaries from one or more Asset Dispositions occurring on or
after the date hereof in any period of 12 consecutive months exceed 10% of
Consolidated Tangible Assets (determined as of the date closest to the
commencement of such 12-month period for which a consolidated balance sheet of
the Guarantor and its subsidiaries have been filed with the Commission), then
the Guarantor or the Issuer shall or shall cause the relevant Restricted
Subsidiary to (i) within 12 months after the date Net Available Proceeds so
received exceed 10% of Consolidated Tangible Assets (A) apply an amount equal
to such excess Net Available Proceeds to permanently repay unsubordinated Debt
of the Guarantor or any Restricted Subsidiary providing a Subsidiary Guarantee
pursuant to Section 10.14 or Debt of any other Restricted Subsidiary, in each
case owing to a Person other than the Guarantor or any of its Restricted
Subsidiaries or (B) invest an equal amount, or the amount 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 Available Proceeds
(to the extent not applied pursuant to clause (i)) as provided in the
paragraph (b) below. The amount of such excess Net Available 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".
(b) 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 totals at least $10 million, the Issuer
shall repay
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any Debt of the Guarantor or any Restricted Subsidiary to the extent the
terms of such Debt require repayment prior to an Offer to Purchase being
made hereunder (including by way of an offer to purchase to the holders of
such Debt, if so required). To the extent there are Excess Proceeds after
such repayment (or offer to purchase), the Issuer must commence, not later
than the fifteenth Business Day of such month (or if later, the fifteenth
Business Day after the expiration of any such required offer to purchase),
and consummate an Offer to Purchase from the holders of the Securities on a
pro rata basis an aggregate Accreted Value of Securities on the relevant
Payment Date equal to the Excess Proceeds on such date not applied or to be
applied pursuant to the first sentence of this paragraph (b), at a purchase
price equal to 100% of the Accreted Value of the Securities, plus, in each
case, accrued interest (if any) to but excluding the Payment Date and, to
the extent required by the terms thereof, any other Debt of the Guarantor
that is pari passu with the Securities at a price no greater than 100% of
the principal amount thereof plus accrued interest to but excluding the date
of purchase (or 100% of the accreted value in the case of original issue
discount Debt). To the extent there are any remaining Excess Proceeds
following the completion of the Offer to Purchase, the Issuer must repay
such other Debt of the Guarantor or Debt of a Restricted Subsidiary of the
Guarantor, to the extent permitted under the terms thereof and, to the
extent there are any remaining Excess Proceeds after such repayment, the
Issuer shall apply such amount to any other use as determined by the Issuer
which is not otherwise prohibited by this Indenture.
SECTION 10.14. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries. The Guarantor may not, and may not permit
any Restricted Subsidiary of the Guarantor to, issue, transfer, convey, sell
or otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary
of the Guarantor or securities convertible or exchangeable into, or options,
warrants, rights or any other interest with respect to, Capital Stock of a
Restricted Subsidiary of the Guarantor to any Person other than the Guarantor
or a Wholly Owned Restricted Subsidiary of the Guarantor except (i) a sale of
all of the Capital Stock of such Restricted Subsidiary owned by the Guarantor
and any Restricted Subsidiary of the Guarantor that complies with Section
10.13 above to the extent such Section applies, (ii) if required, the
issuance, transfer, conveyance, sale or other disposition of directors'
qualifying shares, (iii) Disqualified Stock issued in exchange for, or upon
conversion of, or the proceeds of the issuance of which are used to redeem,
refinance, replace or refund shares of Disqualified Stock of such Restricted
Subsidiary; provided that the amounts of the redemption obligations of such
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Disqualified Stock shall not exceed the amounts of the redemption obligations
of, and such Disqualified Stock shall have redemption obligations no earlier
than those required by, the Disqualified Stock being exchanged, converted,
redeemed, refinanced, replaced or refunded and (iv) issuances of not more than
49% of the voting stock and equity interest in a Restricted Subsidiary engaged
in the Telecommunications Business (1) in connection with the acquisition of
such Restricted Subsidiary or of Telecommunications Assets acquired or to be
acquired by the Guarantor or a Restricted Subsidiary or (2) to a Strategic
Investor; provided, that the Guarantor complies with Section 10.13 above to
the extent such Section applies.
SECTION 10.15. Limitation on Liens. The Guarantor may not,
and may not permit any Restricted Subsidiary of the Guarantor to, Incur or
suffer to exist any Lien on or with respect to any property or assets now
owned or hereafter acquired to secure any Debt without making, or causing such
Restricted Subsidiary to make, effective provision for securing the Securities
(x) equally and ratably with such Debt as to such property for so long as such
Debt will be so secured or (y) in the event such Debt is Debt of the Guarantor
which is subordinate in right of payment to the Securities, prior to such Debt
as to such property for so long as such Debt will be so secured.
The foregoing restrictions shall not apply to: (i) Liens
existing on the date hereof and securing Debt outstanding on the date hereof;
(ii) Liens securing Debt outstanding or available under all Credit Facilities
to the extent such Debt is permitted under clause (i) of the second paragraph
of Section 10.08; (iii) Liens in favor of the Guarantor or any Restricted
Subsidiary of the Guarantor; (iv) Liens on real or personal property of the
Guarantor or a Restricted Subsidiary of the Guarantor acquired, constructed or
constituting improvements made after the date of original issuance of the
Securities to secure Purchase Money Debt which is Incurred for the
construction, acquisition and improvement of Telecommunications Assets and is
otherwise permitted under this Indenture; provided, however, that (a) the
principal amount of any Debt secured by such a Lien does not exceed 100% of
such purchase price or cost of construction or improvement of the property
subject to such Liens, (b) such Lien attaches to such property prior to, at
the time of or within 180 days after the acquisition, completion of
construction or commencement of operation of such property and (c) such Lien
does not extend to or cover any property other than the specific item of
property (or portion thereof) acquired, constructed or constituting the
improvements made with the proceeds of such Purchase Money Debt; (v) Liens to
secure Acquired Debt; provided, however, that (a) such Lien attaches to the
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acquired asset prior to the time of the acquisition of such asset and (b) such
Lien does not extend to or cover any other asset; (vi) Liens to secure Debt
Incurred to extend, renew, refinance or refund (or successive extensions,
renewals, refinancings or refundings), in whole or in part, Debt secured by
any Lien referred to in the foregoing clauses (i), (ii), (iv) and (v) so long
as the principal amount of Debt so secured is not increased except as
otherwise permitted under clause (iii) of the second paragraph of Section
10.08 and, in the case of Liens to secure Debt incurred to extend, renew,
refinance or refund Debt secured by a Lien referred to in the foregoing clause
(i), (iv) or (v), such Liens do not extend to any other property; and (vii)
Permitted Liens.
SECTION 10.16. Limitation on Issuance of Guarantees of Debt
by Restricted Subsidiaries. The Guarantor will not permit any Restricted
Subsidiary, directly or indirectly, to incur any Guarantee of any Debt of the
Guarantor or the Issuer unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for a Guarantee by
such Subsidiary of the Securities; any Subsidiary Guarantee by such Subsidiary
of the Securities (x) will be senior in right of payment to any Guarantee of
Subordinated Debt of the Guarantor or the Issuer and (y) will be pari passu
with or senior to any Guarantee of any other Debt of the Guarantor or the
Issuer.
Notwithstanding the foregoing, any Subsidiary Guarantee 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 Guarantor, of all of the Guarantor'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.
SECTION 10.17. Change of Control. (a) Unless the Issuer has
heretofore exercised its right to redeem all of the Securities in accordance
with the terms of this Indenture and the Securities, upon the occurrence of a
Change of Control (as defined below), each Holder of a Security shall have the
right to have such Security repurchased by the Issuer on the terms and
conditions precedent set forth in this Section 10.17 and otherwise in this
Indenture. The Issuer shall, within 30 days following the date of the
consummation of a transaction resulting in a Change of Control, mail an Offer
with respect to an Offer to
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Purchase all Outstanding Securities at a purchase price equal to 101% of
their Accreted Value plus accrued interest to but excluding the date of
purchase. Installments of interest (including Special Interest) whose Stated
Maturity is on or prior to the Purchase Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.07. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount at maturity.
(b) The Issuer and Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Issuer shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent
(or, if the Issuer is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 10.03) money sufficient to pay the purchase price
of all Securities or portions thereof so accepted and (iii) deliver or cause
to be delivered to the Trustee all Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Issuer. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder.
Any Security not accepted for payment shall be promptly mailed or delivered by
the Issuer to the Holder thereof.
(c) A "Change of Control" shall be deemed to have occurred
in the event that, after the date of this Indenture, either (i) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of more than 35% of the total voting power of the Voting
Stock of the Guarantor, on a fully diluted basis, and such ownership is
greater than the amount of voting power of the Voting Stock of the Guarantor,
on a fully diluted basis, held by the Existing Stockholders and their
Affiliates on such date; (ii) individuals who on the date of this Indenture
constitute the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
Guarantor's stockholders was approved by a vote of at least two-thirds of the
members of the Board of
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Directors then in office who either were members of the Board of Directors
on the date of this Indenture or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of
the members of the Board of Directors then in office; or (iii) all of the
Common Stock of the Issuer is not beneficially owned by the Guarantor (other
than directors' qualifying shares).
(d) In the event that the Issuer makes an Offer to Purchase
the Securities, the Issuer and the Guarantor shall comply with any applicable
securities laws and regulations, including any applicable requirements of
Section 14(e) of, and Rule 14e-1 under, the Securities Exchange Act.
SECTION 10.18. Provision of Financial Information. The
Guarantor and the Issuer have agreed that, for so long as any Securities
remain Outstanding, each will furnish to the holders of the Securities and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. In addition, the Guarantor and the Issuer will file with the
Trustee within 15 days after it files them with the Commission copies of the
annual and quarterly reports and the information, documents, and other reports
that the Guarantor or the Issuer is required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act ("SEC Reports"). In the
event the Guarantor or the Issuer shall cease to be required to file SEC
Reports pursuant to the Exchange Act, the Guarantor and the Issuer will
nevertheless continue to file such reports with the Commission (unless the
Commission will not accept such a filing) and the Trustee. The Guarantor and
the Issuer will furnish copies of the SEC Reports to the holders of Securities
at the time the Guarantor or the Issuer is required to file the same with the
Trustee and will make such information available to investors who request it
in writing.
SECTION 10.19. Statement by Officers as to Default. (a) The
Issuer and the Guarantor will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Guarantor ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Guarantor or the Issuer is in default in the performance
and observance of any of the terms, provisions and conditions of Sections
10.04 to 10.18, inclusive, and if the Guarantor or the Issuer shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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(b) The Issuer and the Guarantor shall deliver to the
Trustee, as soon as possible and in any event within 10 days after the Issuer
or the Guarantor becomes aware of the occurrence of an Event of Default or an
event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default and the action which the Issuer or the Guarantor
proposes to take with respect thereto.
SECTION 10.20. Waiver of Certain Covenants. The Issuer or
the Guarantor, as applicable, may omit in any particular instance to comply
with any covenant or condition set forth in Sections 10.04 to 10.17,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in aggregate principal amount at maturity of the Outstanding
Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Issuer and the Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and
effect.
SECTION 10.21. Paying Agent. The Issuer shall not authorize
or designate any Person (including the Trustee) as a Paying Agent hereunder
unless such Person is located outside of the United Kingdom.
SECTION 10.22. Internal Revenue Service Filing. The Issuer
shall file Internal Revenue Service Form 8281, Information Return for Publicly
Offered Original Issue Discount Instruments, with the Internal Revenue Service
within 30 days of the date of this Indenture and shall mail a copy of such
filing to the Trustee within 15 days after such filing with the Internal
Revenue Service.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. (a) At any time prior
to November 1, 2001, in the event that the Guarantor receives net cash
proceeds from the public or private sale of its Common Stock (other than
Disqualified Stock), the Issuer (to the extent it receives such proceeds and
has not used such proceeds, directly or indirectly, to redeem or repurchase
other securities pursuant to optional redemption provisions) may, at its
option, apply an amount equal to any such net cash proceeds to redeem, from
time to
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time, Securities in a principal amount at maturity of up to an aggregate
amount equal to 33 1/3% of the original aggregate principal amount at
maturity of the Securities; provided, however, that Securities in an amount
equal to at least 66 2/3% of the original aggregate principal amount at
maturity of the Securities remain Outstanding after each redemption. Each
redemption must occur on a Redemption Date within 180 days of the related
sale and upon not less than 30 nor more than 60 days' notice by mail to each
Holder of Securities to be redeemed at such Holder's address appearing in
the Security Register, in amounts of $1,000 or an integral multiple of
$1,000 at a Redemption Price of 112.000% of the Accreted Value of the
Securities plus accrued interest to but excluding the Redemption Date
(subject to, in the case of a Global Security in bearer form, the right of
the Holder thereof and, in the case of Definitive Securities, the right of
Holders of record on the relevant Regular Record Date, to receive Interest
due on an Interest Payment Date that is on or prior to the Redemption Date).
(b) In the event that (i) the Guarantor or the Issuer has
become or would become obligated to pay any Additional Amounts as a result of
(x) changes affecting withholding tax laws or (y) a Listing Failure (as
defined herein) provided that the Issuer has used reasonable best efforts to
list and maintain the listing of the Securities on a "recognized stock
exchange" (within the meaning of Section 841 of the U.K. Income and
Corporation Taxes Act 1988) (as provided for in Section 10.09), and (ii) the
Guarantor and the Issuer are unable to avoid the requirement to pay such
Additional Amounts by taking reasonable measures available to them (including,
without limitation, the Guarantor making payments directly to holders under
the Securities Guarantee, unless such payment is likely to result in adverse
consequences to the Issuer or the Guarantor), then the Issuer may redeem all,
but not less than all, of the Securities at any time at 100% of the Accreted
Value thereof on the Redemption Date, together with accrued interest thereon,
if any, to but excluding the Redemption Date (subject to, in the case of a
Global Security in bearer form, the right of the Holder thereof and, in the
case of Definitive Securities, the right of Holders of record on the relevant
Regular Record Date, to receive Interest due on an Interest Payment Date that
is on or prior to the Redemption Date). Prior to the publication of the notice
of redemption in accordance with the foregoing, the Issuer shall deliver to
the Trustee an officer's certificate stating that the Issuer is entitled to
effect such redemption based on a written opinion of independent tax counsel
or accounting firm reasonably satisfactory to the Trustee.
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(c) The Securities further may be redeemed, as a whole or in
part, at the election of the Issuer, at any time on or after November 1, 2003
and prior to maturity, upon not less than 30 nor more than 60 days' notice by
mail to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of $1,000 or an integral
multiple of $1,000, at the Redemption Prices specified in the form of Security
hereinbefore set forth, together with accrued interest to but excluding the
Redemption Date (subject to, in the case of a Global Security in bearer form,
the right of the Holder thereof and, in the case of Definitive Securities, the
right of Holders of record on the relevant Regular Record Date, to receive
Interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
SECTION 11.02. Applicability of Article. Redemption of
Securities at the election of the Issuer, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 11.03. Election To Redeem; Notice to Trustee. The
election of the Issuer to redeem any Securities pursuant to Section 11.01
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Issuer of less than all the Securities, the Issuer shall, at
least 5 days prior to giving notice of such redemption pursuant to Section
11.05 (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Issuer shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.04. Securities To Be Redeemed Pro Rata. If less
than all the Securities are to be redeemed in any redemption, the Securities
to be redeemed shall be selected by the Trustee by prorating, as nearly as may
be practicable, the principal amount at maturity of Securities to be redeemed.
In any proration pursuant to this Section, the Trustee shall make such
adjustments, reallocations and eliminations as it shall deem proper to the end
that the principal amount at maturity of Securities so prorated shall be
$1,000 or a multiple thereof, by increasing or decreasing or eliminating the
amount which would be allocable to any Holder on the basis of exact proportion
by an amount not exceeding $1,000. The Trustee in its discretion may determine
the particular Securities (if there are more than one) registered in the name
of any Holder which are to be
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redeemed, in whole or in part. The Trustee shall incur no liabilities for
any selection made pursuant to this Section 11.04.
The Trustee shall promptly notify the Issuer and each
Security Registrar in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount at maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount at maturity of such Securities
which has been or is to be redeemed.
SECTION 11.05. 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
Securities to be redeemed, at such Holder's address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section
11.01(a), (b) or (c) and, if being made pursuant to Section 11.01(a)
or (b), a brief statement setting forth the Issuer's right to effect
such redemption and the Issuer's basis therefor,
(4) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption
of any Securities, the principal amounts at maturity) of the
particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and
that interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that in the case that a Security is only redeemed in
part, the Issuer shall execute and the
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Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities in
an aggregate amount equal to the unredeemed portion of the Security.
Notice of redemption of Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer. If so
requested by the Issuer, the Trustee shall mail any such notice not later than
the date specified for mailing by the Issuer, which shall not be sooner than 5
days after receipt by the Trustee of such request (unless a shorter period
shall be satisfactory to the Trustee).
SECTION 11.06. Deposit of Redemption Price. Prior to any
Redemption Date, the Issuer shall deposit with the Trustee or with a Paying
Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 11.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Issuer at the Redemption Price, together with accrued
interest to but excluding the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the bearer of such Security, in the case
of a Global Security in bearer form, and, in the case of a Definitive
Security, to Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate provided
by the Security.
SECTION 11.08. Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be
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surrendered at an office or agency of the Issuer designated for that purpose
pursuant to Section 10.02 (with, if the Issuer or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Issuer and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Issuer shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of like tenor, 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 Security so surrendered.
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations. Except
as otherwise provided in this Section 12.01, each of the Issuer and the
Guarantor may terminate its obligations under the Securities and this
Indenture if:
(a) all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities that have been
replaced or Securities for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Issuer,
as provided in Section 12.05) have been delivered to the Trustee for
cancelation and the Issuer has paid all sums payable by it hereunder;
or
(b)(i) all such Securities mature within one year or all of
them are to be called for redemption within one year under
arrangements 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 satisfactory to the Trustee, as
trust funds solely for the benefit of the Holders of such Securities
for that purpose, money or U.S. Government Obligations 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
such Securities to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, (iii) no Default or Event
of Default with respect to the Securities shall have occurred and
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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 Guarantor or the Issuer is a party or by which it is
bound, (v) if at such time the Securities are listed on a national
securities exchange, the Securities will not be delisted as a
result of such deposit, defeasance and discharge, and (vi) 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 satisfaction and
discharge of this Indenture 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 in Sections 3.03, 3.04, 3.05, 3.06, 3.07,
10.01, 10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the
Securities have matured or have been redeemed. Thereafter, only the Issuer's
obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such
irrevocable deposit, the Trustee upon written request shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities and
this Indenture, and the Guarantor's obligations under the Guarantee and this
Indenture, except for those surviving obligations specified above.
SECTION 12.02. 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 Securities on the 123rd day after the date of
the deposit referred to in clause (a) of this Section 12.02 if:
(a) with reference to this Section 12.02, the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and has conveyed all right, title and interest for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form 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 Accreted Value or principal
of, premium, if any, and interest, if any, on the Securities, and
dedicated solely to, the benefit of the Holders, in and to (i) money
in an amount, (ii) U.S. Government Obligations 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
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(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 on the Outstanding Securities at the Stated
Maturity of such principal or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and
interest with respect to the Securities and to give any related
notice of redemption;
(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 Guarantor, the Issuer or any of
their Subsidiaries is a party or by which the Guarantor, the Issuer
or any of their Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both could become a 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
the date of such deposit;
(d) the Issuer shall have delivered to the Trustee either
(i) a ruling based on relevant law and practice at the time directed
to the Trustee from the Inland Revenue or other relevant tax
authority to the effect that the Holders will not recognize income,
gain or loss for U.K. income tax or other tax purposes as a result of
the Issuer's exercise of its option under this Section 12.02,
disregarding income tax on any amounts that would have been received
but for such exercise of its option under this Section 12.02, and
will be subject to U.K. income tax on the same amount and in the same
manner and at the same time as would have been the case if such
option had not been exercised or (ii) an Opinion of Counsel to the
same effect as the ruling described in clause (i) above;
(e) the Issuer shall have delivered to the Trustee (i)
either (A) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will not
recognize additional
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income, gain or loss for U.S. federal income tax purposes as a
result of the Issuer's exercise of its option under this Section
12.02 and will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such option had not been exercised or (B) an
Opinion of Counsel to the same effect as the ruling described in
clause (A) above accompanied by a ruling to that effect published
by the Internal Revenue Service, unless there has been a change in
the relevant U.S. federal income tax law since the date of this
Indenture and (ii) an Opinion of Counsel to the effect that (A)
the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (B) 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
"connected" with the Issuer for purposes of the Insolvency Xxx
0000 after two years following the deposit), the trust funds will
not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law 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 (1) 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 and (2) no property, rights
in property or other interests granted to the Trustee or the
Holders in exchange for, or with respect to, such trust funds will
be subject to any prior rights of holders of other Debt of the
Issuer or any of its Securities;
(f) if at such time the Securities are listed on a national
securities exchange, the Issuer shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Securities will not be
delisted as a result of the Issuer's exercise of its opinion under
this Section 12.02; and
(g) the Issuer shall have 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
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contemplated by this Section 12.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post
deposit period referred to in clause (e)(ii)(B) of this Section 12.02, none of
the Issuer's obligations under this Indenture shall be discharged. Subsequent
to the end of such period with respect to this Section 12.02, the Issuer's
obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07,
6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the Securities mature
or are redeemed. Thereafter, only the Issuer's obligations in Sections 6.07,
12.05 and 12.06 shall survive. If and when a ruling from the Internal Revenue
Service or an Opinion of Counsel referred to in clause (e)(i) of this Section
12.02 may be provided specifically without regard to, and not in reliance
upon, the continuance of the Issuer's obligations under Section 10.01, then
the Issuer's obligations under such sentence 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 12.02.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuer's obligations under
the Securities, any Subsidiary Guarantee, if any, and this Indenture except
for those surviving obligations in the immediately preceding paragraph.
SECTION 12.03. Defeasance of Certain Obligations. The
Issuer may omit to comply with any term, provision or condition set forth in
clauses (3) and (4) of Section 8.01 and Sections 10.05 through 10.18 (except
for Section 10.09 and any covenant otherwise required by the TIA), and clause
(d) of Section 5.01 with respect to clauses (3) and (4) of Section 8.01,
clauses (d) and (e) of Section 5.01 with respect to Sections 10.05 through
10.18, except as aforesaid, and clauses (c), (f) and (g) of Section 5.01 shall
be deemed not to be Events of Default, in each case with respect to the
Outstanding Securities if:
(a) with reference to this Section 12.03, the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee 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 Securities, and dedicated solely
to, the benefit of the
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Holders, in and to (i) money in an amount, (ii) U.S. Government
Obligations 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
Outstanding Securities on the Stated Maturity or upon earlier
redemption 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 Obligations to the payment
of such principal, premium, if any, and interest with respect to
the Securities and to give any related notice of redemption;
(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 Guarantor, the Issuer or any of
their Subsidiaries is a party or by which the Guarantor, the Issuer
or any of their Subsidiaries is bound;
(c) immediately after giving effect to such deposit or a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both would become a 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
the day of such 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 Holders
will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such deposit and the defeasance of the
obligations referred to in the first paragraph of this Section 12.03
and will be subject to U.S. federal income tax on the same amount and
in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred and (iii) 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
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to be "connected" with the Issuer for purposes of the Insolvency
Xxx 0000 after two years following the deposit), the trust funds
will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law, 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 creditor's 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 (1) 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 and (2) no
property, rights in property or other interests granted to the
Trustee or the Holders in exchange for, or with respect to, such
trust funds will be subject to any prior rights or holders of
other Indebtedness of the Issuer or any of its Securities;
(e) if at such time the Securities are listed on a national
securities exchange, the Issuer has delivered to the Trustee an
Opinion of Counsel to the effect that the Securities will not be
delisted as a result of the Issuer's exercise of its option under
Section 12.03; 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 12.03 have been complied with.
SECTION 12.04. Application of Trust Money. Subject to
Section 12.06, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 12.01, 12.02 or
12.03, as the case may be, and shall apply the deposited money and the money
from U.S. Government Obligations in accordance with the Securities and this
Indenture to the payment of principal of, premium, if any, and interest on the
Securities; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 12.05. Repayment to Issuer. Subject to Sections
6.07, 12.01, 12.02 and 12.03, the Trustee and the Paying Agent shall promptly
pay to the Issuer upon request set forth in an Officers' Certificate any
excess money held
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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 any money held by them for the payment of principal, premium, if any,
or interest that remains unclaimed in accordance with Section 10.02.
SECTION 12.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 12.01, 12.02 or 12.03, 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, the Securities
Guarantee, and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.01, 12.02 or 12.03, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section
12.01, 12.02 or 12.03, as the case may be; provided that, if the Issuer has
made any payment of principal of, premium, if any, or interest on any
Securities because of the reinstatement of its obligations, the Issuer shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
SECTION 12.07. Insiders. With respect to the determination
of the Persons constituting beneficial owners of Securities and whether any
such Person is "connected" with the Issuer for purposes of Sections
12.02(e)(ii)(B) and 12.03(d)(iii), the Trustee may rely on an Officers'
Certificate.
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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 above written.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by
/s/ Xxxxx Xxxxxxxx
------------------
Name:
Title:
by
/s/ Xxxxxx Xxxxxx
-----------------
Name:
Title:
THE CHASE MANHATTAN BANK,
by
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Name:
Title:
RSL COMMUNICATIONS, LTD.,
by
/s/ Xxxxx Xxxxxxxx
------------------
Name:
Title:
