xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXXXX XXXXX XXXXXXX, INC.,
as Issuer
-----------------------------
[NAME OF NEW GLOBAL CROSSING HOLDING COMPANY]
and
THE OTHER GUARANTORS REFERRED TO HEREIN,
as Guarantors
------------------------------
11% SENIOR SECURED NOTES DUE 2006
------------------------------
INDENTURE
Dated as of __________, 2003
------------------------------
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
------------------------------
$200,000,000
------------------------------
================================================================================
Table of Contents
This Table of Contents does not for any purpose constitute a part of this
Indenture, and is inserted for convenience of reference only.
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ......................... 6
SECTION 1.01. Definitions .................................................. 6
SECTION 1.02. Other Definitions ............................................ 24
SECTION 1.03. Trust Indenture Act Definitions. ............................. 24
SECTION 1.04. Rules of Construction ........................................ 25
ARTICLE II THE NOTES ......................................................... 25
SECTION 2.01. Form and Dating .............................................. 25
SECTION 2.02. Execution, Authentication and Denominations .................. 26
SECTION 2.03. Registrar and Paying Agent ................................... 27
SECTION 2.04. Paying Agent to Hold Money in Trust. ......................... 27
SECTION 2.05. Transfer and Exchange ........................................ 28
SECTION 2.06. Replacement Notes ............................................ 30
SECTION 2.07. Outstanding Notes. ........................................... 31
SECTION 2.08. Temporary Notes .............................................. 32
SECTION 2.09. Cancellation ................................................. 32
SECTION 2.10. CUSIP Numbers ................................................ 32
SECTION 2.11. Defaulted Interest. .......................................... 32
SECTION 2.12. Noteholder Lists. ............................................ 33
SECTION 2.13. Communication By Holders with Other Holders .................. 33
ARTICLE III REDEMPTION AND PREPAYMENT ........................................ 33
SECTION 3.01. Notices to Trustee ........................................... 33
SECTION 3.02. Selection of Notes to Be Redeemed. ........................... 33
SECTION 3.03. Notice of Redemption. ........................................ 33
SECTION 3.04. Effect of Notice of Redemption. .............................. 34
SECTION 3.05. Deposit of Redemption Price. ................................. 34
SECTION 3.06. Notes Redeemed in Part. ...................................... 35
SECTION 3.07. Optional Redemption. ......................................... 35
SECTION 3.08. Payment of Additional Amounts ................................ 35
SECTION 3.09. Offer to Purchase by Application of Excess Proceeds. ......... 38
ARTICLE IV COVENANTS ......................................................... 39
SECTION 4.01. Payment of Notes. ............................................ 39
SECTION 4.02. Maintenance of Office or Agency. ............................. 40
SECTION 4.03. Reports ...................................................... 40
SECTION 4.04. Compliance Certificate, Etc. ................................. 41
SECTION 4.05. Taxes. ....................................................... 41
SECTION 4.06. Stay, Extension and Usury Laws ............................... 42
SECTION 4.07. Restricted Payments. ......................................... 42
SECTION 4.08. Certain Dividend and Other Payment Restrictions. ............. 44
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock ... 46
i
SECTION 4.10. Asset Sales ................................................. 48
SECTION 4.11. Transactions with Affiliates. ............................... 50
SECTION 4.12. Liens. ...................................................... 52
SECTION 4.13. Sale and Leaseback Transactions. ............................ 52
SECTION 4.14. Offer to Repurchase Upon Change of Control .................. 52
SECTION 4.15. Guarantee Supplements ....................................... 53
SECTION 4.16. Payments for Consent ........................................ 53
SECTION 4.17 Designation of Restricted and Unrestricted Subsidiaries. .... 53
ARTICLE V CONSOLIDATION, MERGER AND SALE OF ASSETS .......................... 54
SECTION 5.01. Merger, Consolidation, or Sale of Assets .................... 54
SECTION 5.02. Successor Entity Substituted. ............................... 54
ARTICLE VI SECURITY DOCUMENTS ............................................... 55
SECTION 6.01. Collateral and Security Documents ........................... 55
SECTION 6.02. Maintenance of Security Interests. .......................... 56
SECTION 6.03. Subordination to Working Capital Facility. .................. 58
SECTION 6.04. Release of Liens. ........................................... 58
ARTICLE VII DEFAULT AND REMEDIES ............................................ 59
SECTION 7.01. Events of Default ........................................... 59
SECTION 7.02. Acceleration ................................................ 60
SECTION 7.03. Other Remedies. ............................................. 61
SECTION 7.04. Waiver of Past Defaults ..................................... 61
SECTION 7.05. Control by Majority ......................................... 61
SECTION 7.06. Limitation on Suits. ........................................ 61
SECTION 7.07. Rights of Holders of Notes to Receive Payment ............... 62
SECTION 7.08. Collection Suit by Trustee .................................. 62
SECTION 7.09. Trustee May Files Proofs of Claim. .......................... 62
SECTION 7.10. Priorities. ................................................. 63
SECTION 7.11. Undertaking for Costs. ...................................... 63
ARTICLE VIII TRUSTEE ........................................................ 63
SECTION 8.01. General. .................................................... 63
SECTION 8.02. Certain Rights of Trustee; Reliance on Certificate. ......... 64
SECTION 8.03. May Hold Notes. ............................................. 65
SECTION 8.04. Trustee's Disclaimer ........................................ 65
SECTION 8.05. Notice of Default ........................................... 65
SECTION 8.06. Reports by Trustee to Holders ............................... 65
SECTION 8.07. Compensation and Indemnity .................................. 65
SECTION 8.08. Replacement of Trustee ...................................... 66
SECTION 8.09. Successor Trustee by Merger, Etc ............................ 67
SECTION 8.10. Eligibility; Disqualification ............................... 67
SECTION 8.11. Money Held in Trust. ........................................ 67
SECTION 8.12. Withholding Taxes. .......................................... 68
SECTION 8.13. Preferential Collection of Claims Against the Issuer. ....... 68
ARTICLE IX LEGAL DEFEASANCE AND COVENANT DEFEASANCE ......................... 68
SECTION 9.01 Option to Effect Legal Defeasance or Covenant Defeasance. ... 68
ii
SECTION 9.02 Legal Defeasance and Discharge. .............................. 68
SECTION 9.03 Covenant Defeasance. ......................................... 69
SECTION 9.04 Conditions to Legal or Covenant Defeasance. .................. 69
SECTION 9.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions ............................... 71
SECTION 9.06 Repayment to Company. ........................................ 71
SECTION 9.07 Reinstatement. ............................................... 72
ARTICLE X AMENDMENTS, SUPPLEMENTS AND WAIVERS .............................. 72
SECTION 10.01. Without Consent of Holders ................................... 72
SECTION 10.02. Consent of Holders ........................................... 73
SECTION 10.03. Revocation and Effect of Consent ............................. 74
SECTION 10.04. Notation on or Exchange of Notes. ............................ 74
SECTION 10.05. Trustee to Sign Amendments, Etc .............................. 74
SECTION 10.06. Conformity with Trust Indenture Act .......................... 75
SECTION 10.07. Amendments to Security Documents ............................. 75
ARTICLE XI NOTE GUARANTEE ............................................... 75
SECTION 11.01. Note Guarantee ............................................... 75
SECTION 11.02. Limitation on Guarantor Liability. ........................... 76
SECTION 11.03. Rights of Contribution ....................................... 77
ARTICLE XII SATISFACTION AND DISCHARGE ................................... 78
SECTION 12.01 Satisfaction and Discharge. .................................. 78
SECTION 12.02 Application of Trust Money ................................... 79
ARTICLE XIII MISCELLANEOUS .................................................. 79
SECTION 13.01. Trust Indenture Act of 1939. ................................. 79
SECTION 13.02. Notices ...................................................... 79
SECTION 13.03. Certificate and Opinion as to Conditions Precedent. .......... 80
SECTION 13.04. Statements Required in Certificate or Opinion. ............... 80
SECTION 13.05. Rules by Trustee, Paying Agent or Registrar. ................. 81
SECTION 13.06. Payment Date Other Than a Business Day. ...................... 81
SECTION 13.07. Governing Law ................................................ 81
SECTION 13.08. No Adverse Interpretation of Other Agreements. ............... 81
SECTION 13.09. No Recourse Against Others. .................................. 81
SECTION 13.10. Successors. .................................................. 82
SECTION 13.11. Duplicate Originals .......................................... 82
SECTION 13.12. Severability ................................................. 82
SECTION 13.13. Qualification of Indenture. .................................. 82
SECTION 13.14. Table of Contents, Headings, Etc ............................. 82
SECTION 13.15. Consent to Jurisdiction. ..................................... 82
SECTION 13.16. Judgment Currency. ........................................... 83
EXHIBIT A Form of Note
EXHIBIT B Form of Guarantee Supplement
EXHIBIT C Form of Intercreditor Agreement
iii
Cross-reference sheet showing the location in this Indenture of the
provisions inserted pursuant to Sections 310 through 318(a) inclusive of the
Trust Indenture Act of 1939.
TIA Indenture Section
--- -----------------
Section 310 (a)(1) ........................................ 8.10
(a)(2) ........................................ 8.10
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ Not Applicable
(b) .......................................... 8.10
(c) .......................................... Not Applicable
Section 311 (a) .......................................... 8.13
(b) .......................................... 8.13
(c) .......................................... Not Applicable
Section 312 (a) .......................................... 2.12
(b) .......................................... 2.13
(c) .......................................... 2.13
Section 313 (a) .......................................... 8.06
(b) .......................................... 8.06
(c) .......................................... 8.05
(d) .......................................... 8.06
Section 314 (a) .......................................... 4.03, 4.04
(b) .......................................... 6.02
(c) .......................................... 12.03
(d) .......................................... 6.04(c)
(e) .......................................... 12.04
(f) .......................................... Not Applicable
Section 315 (a)(1) ........................................ 8.07(b)
(a)(2) ........................................ 8.02(a)(i), 8.07(b)
(b) .......................................... 8.05, 8.07(b)
(c) .......................................... 8.01, 8.07(b)
(d) .......................................... 8.07(b)
(e) .......................................... 7.10
Section 316 (a) .......................................... 7.05
(b) .......................................... 7.07
(c) .......................................... Not Applicable
Section 317 (a)(1) ........................................ 7.08
(a)(2) ........................................ 7.09
(b) .......................................... 2.04
Section 318 (a) .......................................... 12.01
iv
INDENTURE, dated as of ___________, 2003, by and between
GLOBAL CROSSING NORTH AMERICA, INC., a corporation duly organized and validly
existing under the laws of the State of New York (the "Issuer"), [NAME OF NEW
GLOBAL CROSSING HOLDING COMPANY], a company organized under the laws of Bermuda
(the "Company"), and the other entities identified on the signature pages hereto
under the caption "GUARANTORS" (the Company together with such other entities,
and any entity that shall become a Guarantor hereunder pursuant to Section 4.15
hereof, being herein called the "Guarantors" and, together with the Issuer, the
"Debtor Parties") and Xxxxx Fargo Bank Minnesota, National Association, as
trustee (the "Trustee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, on January 28, 2002, Global Crossing Holdings Ltd., a
company organized under the laws of Bermuda ("GX Holdings"), the Issuer, and
certain of their subsidiaries and affiliates (collectively, the "U.S. Debtors")
filed a voluntary petition in the United States Bankruptcy Court for the
Southern District of New York (the "Bankruptcy Court") initiating cases under
chapter 11 of title 11 of the United States Code xx.xx. 101-1330, as amended
(the "Bankruptcy Code") and continued in the possession of their assets and in
the management of their businesses pursuant to sections 1107 and 1108 of the
Bankruptcy Code;
WHEREAS, on January 28, 2002, GX Holdings and certain of the
subsidiaries and affiliates of GX Holdings organized under the laws of Bermuda
(collectively, the "Bermuda Debtors" and, together with the U.S. Debtors, the
"Debtors") petitioned the Supreme Court of Bermuda (the "Bermuda Court") for the
appointment of Joint Provisional Liquidators, and by an order dated January 28,
2002 (the "Bermuda Orders"), the Joint Provisional Liquidators were appointed by
the Bermuda Court in respect of each Bermuda Debtor;
WHEREAS, the U.S. Debtors have proposed a plan of
reorganization with the Bankruptcy Court (the "Plan"), which has been confirmed
by an order of the Bankruptcy Court, and the Bermuda Debtors have proposed
certain schemes of arrangement (the "Schemes of Arrangement") with the Bermuda
Court which have been sanctioned by an order of the Bermuda Court by an order
dated ___________;
WHEREAS, pursuant to the Plan and the Schemes of Arrangement,
the Issuer is to enter into this Indenture and issue $200,000,000 aggregate
principal amount of its 11% Senior Secured Notes due 2006 (the "Notes") to
certain holders of claims against the Debtors;
WHEREAS, pursuant to the Plan and the Schemes of Arrangement,
the Debtors have formed the Company as a new direct or indirect holding company
of all of the shares of stock and other equity interests issued by the Debtors
and their subsidiaries and affiliates, with the intent that the Company enter
into this Indenture and cause each of the Material Subsidiaries of the Company
(as hereinafter defined) to guarantee the obligations of the Issuer hereunder
and under and in respect of the Notes;
WHEREAS, to secure the prompt payment of the principal of and
interest on, and all other amounts due with respect to, the Notes from time to
time outstanding hereunder and the performance and observance by the Issuer and
the Guarantors of all the agreements, covenants and provisions contained herein
(including, without limitation, the Trustee's rights to indemnification
hereunder), in the Notes and in the Security Documents (as hereinafter defined),
and for the uses and purposes and subject to the terms and provisions hereof,
and in consideration of the premises and of the covenants herein contained and
of the acceptance of the Notes by the holders thereof, each Debtor Party hereby
confirms that it has, or has caused to be, granted, conveyed, mortgaged, sold,
assigned, transferred, pledged, deposited and confirmed, and does hereby grant,
convey, mortgage, sell, assign, transfer, pledge, deposit and confirm, unto the
Trustee, its successors and assigns, for the security and benefit of the holders
from time to time of the Notes and the Trustee, a security interest in and Lien
(as hereinafter defined) on all Collateral (as hereinafter defined), whether now
existing or hereafter subjected to the Lien of this Indenture by any instrument
supplemental hereto;
WHEREAS, as part of the confirmation of the Plan under section
1129 of the Bankruptcy Code, the Debtor Parties each received a discharge,
pursuant to section 1141 of the Bankruptcy Code, of _________________.
NOW, THEREFORE, IT IS HEREBY COVENANTED AND AGREED, for and in
consideration of the foregoing premises, for the ratable benefit of all holders,
as follows:
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person,
(a) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness Incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (b) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise.
"AGC" means, Asia Global Crossing Ltd.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-registrar.
"all or substantially all" shall have the meaning given such
phrase in the Revised Model Business Corporation Act.
2
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means (A) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) by the Company or any of its Subsidiaries and (B) the
issuance of Equity Interests by any of the Company's Restricted Subsidiaries, in
the case of any of the preceding clauses (A) or (B), whether in a single
transaction or a series of related transactions (x) that have a fair market
value in excess of $50.0 million or (y) for consideration having a fair market
value in excess of $50.0 million. Notwithstanding the foregoing, the following
items will not be deemed to be Asset Sales:
(a) (i) sales of inventory in the ordinary course of business
and (ii) any sale, lease, transfer, conveyance or other disposition of
capacity on any cable or fiber system owned, controlled or operated by
the Company or any Subsidiary or of telecommunications capacity or
transmission rights acquired by the Company or any Subsidiary, in each
case in the ordinary course of business, for use in a Permitted
Business, provided that the sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets or rights of the
Company and its Subsidiaries taken as a whole will be governed by the
provisions of Sections 4.14 and/or the provisions of Section 5.01
hereof and not by the provisions of Section 4.10 hereof;
(b) a transfer of assets by the Company to any of its
Subsidiaries or by any of its Subsidiaries to the Company or to a
Subsidiary of the Company;
(c) an issuance of Equity Interests to the Company or a
Subsidiary of the Company by a Subsidiary of the Company;
(d) a Restricted Payment that is permitted by Section 4.07
hereof;
(e) the sale or other disposition of cash or Cash Equivalents;
and
(f) a disposition of obsolete or worn-out equipment or
equipment that is no longer useful in the conduct of a Permitted
Business and that is disposed of in the ordinary course of business.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bankruptcy Code" has the meaning provided in the recitals
hereto.
"Bankruptcy Court" has the meaning provided in the recitals
hereto.
3
"Bankruptcy Law" means the Bankruptcy Code or any similar
federal or state law or any similar provisions of Bermuda law or any relevant
law outside the United States and Bermuda, for the relief of debtors.
"Beneficial Owner" means a "beneficial owner" as defined in
Rules 13d-3 and 13d-5 under the Exchange Act.
"Beneficially Own" means "beneficially own" as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, and "Beneficial Ownership" has a
meaning correlative thereto.
"Board of Directors" means, in the case of any Debtor Party,
the board of directors or other governing body of such Debtor Party.
"Board Resolution" means, in the case of any Debtor Party, a
copy of a resolution, certified by the appropriate officer of such Debtor Party
to have been duly adopted by the Board of Directors of such Debtor Party and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in the State of New York are authorized
or required by law to close.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (d) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
property of, the issuing Person.
"Cash Equivalents" means (a) United States dollars, (b)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (c)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Xxxxxxxx Bank Watch Rating of "B" or better, (d) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in the preceding clauses (b) and (c) entered into with any
financial institution meeting the qualifications specified in the preceding
clause (c), (e) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation
4
and in each case maturing within six months after the date of acquisition and
(f) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the types and maturities described in the preceding clauses (a)
through (d).
"Change of Control" means the occurrence of any of the
following: (a) any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), other than a Permitted Holder, is or becomes the beneficial
owner, directly or indirectly, of 35% or more of the Voting Stock (measured by
voting power rather than number of shares) of the Company, and the Permitted
Holders own, in the aggregate, a lesser percentage of the total Voting Stock
(measured by voting power rather than by number of shares) of the Company than
such person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of the Company, (b) during a period of two consecutive years,
Continuing Directors cease for any reason to constitute a majority of the Board
of Directors of the Company, (c) the Company consolidates or merges with or into
any other Person, other than pursuant to a transaction in which the outstanding
Voting Stock of the Company is changed into or exchanged for cash, securities or
other property with the effect that the beneficial owners of the outstanding
Voting Stock of the Company immediately prior to such transaction, beneficially
own, directly or indirectly, more than 50% of the Voting Stock (measured by
voting power rather than number of shares) of the surviving corporation
immediately following such transaction or (d) the sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole to any person other
than a Restricted Subsidiary of the Company or a Permitted Holder or a person
more than 50% of the Voting Stock (measured by voting power rather than by
number of shares) of which is owned, directly or indirectly, following such
transaction or transactions by the Permitted Holders; provided, however, that
sales, transfers, conveyances or other dispositions in the ordinary course of
business of capacity on cable systems owned, controlled or operated by the
Company or any Restricted Subsidiary or of telecommunications capacity or
transmission rights acquired by the Company or any Restricted Subsidiary for use
in its business, including, without limitation, for sale, lease, transfer,
conveyance or other disposition to any customer of the Company or any Restricted
Subsidiary shall not be deemed a disposition of assets for purposes of this
clause (d).
"Clearstream" means Clearstream Banking, societe anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, (a) all buildings, plants,
network facilities, structures, improvements and equipment of the Debtor Parties
and all other property of the Debtor Parties, (b) all the issued and outstanding
Equity Interests held by the Debtor Parties in any Subsidiaries of the Debtor
Parties, (c) all cash held by the Trustee pursuant to this Indenture or the
Security Documents, (d) all other property of the Debtor Parties enumerated
under the Security Documents and (e) all proceeds of any of the foregoing.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, or, if at any time after the execution of this
Indenture such Commission is not
5
existing and performing the duties now assigned to it under the TIA, the body
performing such duties at such time.
"Company" means the party named as such in this Indenture
until a Successor Entity replaces it pursuant to Article V hereof, and
thereafter means such Successor Entity.
"Consolidated Capital Ratio" means, with respect to the
Company or any of its Restricted Subsidiaries, as of the date of any incurrence
of Indebtedness or issuance of Disqualified Stock, the ratio of (i) the
aggregate consolidated principal amount of Indebtedness outstanding and the
liquidation preference of Disqualified Stock as of the most recent quarterly or
annual balance sheet date, after giving pro forma effect to the incurrence of
such Indebtedness or the issuance of such Disqualified Stock and any other
Indebtedness incurred and Disqualified Stock issued since such balance sheet
date, and the receipt and application of the proceeds therefrom to (ii)
Consolidated Net Worth as of such balance sheet date after giving pro forma
effect to the issuance of Equity Interests (other than Disqualified Stock)
issued since the balance sheet date and the receipt and application of the
proceeds therefrom.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person and its
Restricted Subsidiaries for such period plus, to the extent that any of the
following items were deducted or added (without duplication) in computing such
Consolidated Net Income, (a) an amount equal to any extraordinary loss plus any
net loss realized in connection with any Asset Sale, plus (b) provision for
taxes based on income or profits of such Person and its Restricted Subsidiaries
for such period, plus (c) Consolidated Interest Expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized, plus (d) depreciation, amortization (including amortization of
goodwill and other intangibles and the amount of capacity available for sale
charged to cost of sales), but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (excluding any
such non-cash expense to the extent that it represents an accrual or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Subsidiaries for such
period, plus (e) any change in Deferred Revenue, in each case, on a consolidated
basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of such Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of such Person only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended to such Person by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
(excluding all agreements, evidencing Indebtedness incurred in accordance with
clause (g) of Section 4.09 hereof, to which this provision shall not apply),
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Restricted Subsidiary or its shareholders.
"Consolidated Interest Expense" for any Person means for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person and its
consolidated Restricted Subsidiaries for such period,
6
including without limitation or duplication (or, to the extent not so included,
with the addition of), (i) amortization of debt issuance costs and original
issue discount, (ii) non-cash interest payments (other than interest payments
payable solely in Equity Interests other than Disqualified Stock), (iii) the
interest component of any deferred payment obligations, (iv) the interest
component of all payments associated with Capital Lease Obligations, (v) imputed
interest with respect to Attributable Debt, (vi) commissions, discounts and
other fees and charges incurred in respect of letters of credit or bankers'
acceptance financings and (vii) net payments (if any) pursuant to Hedging
Obligations.
"Consolidated Leverage Ratio" of any specified Person, as of
the date of any Incurrence of Indebtedness or issuance of Disqualified Stock
means, with respect to such Person and its Restricted Subsidiaries, the ratio of
(a) the aggregate consolidated principal amount of Indebtedness outstanding and
the liquidation preference of Disqualified Stock as of the most recent quarterly
or annual balance sheet date, after giving pro forma effect to the Incurrence of
such Indebtedness or the issuance of such Disqualified Stock and any other
Indebtedness Incurred and Disqualified Stock issued since such balance sheet
date, and the receipt and application of the proceeds therefrom to (b)
Consolidated Cash Flow for the four full fiscal quarters ending on or prior to
the date of Incurrence of such Indebtedness or issuance of such Disqualified
Stock for which consolidated financial statements are available.
For purposes of this definition, the aggregate consolidated
principal amount of Indebtedness of such Person and the liquidation preference
of Disqualified Stock for which such calculation is made shall be determined on
a pro forma basis as if the Indebtedness and Disqualified Stock giving rise to
the need to perform such calculation had been Incurred and issued and the
proceeds therefrom had been applied, and all other transactions in respect of
which such Indebtedness is being incurred or Disqualified Stock is being issued
had occurred, on the first day of such Reference Period. In addition to the
foregoing, for purposes of this definition, the Consolidated Leverage Ratio
shall be calculated on a pro forma basis, after giving effect to (i) the
Incurrence of the Indebtedness of such Person and the issuance of the
Disqualified Stock (and the application of the proceeds therefrom) giving rise
to the need to make such calculation and any Incurrence (and the application of
the proceeds therefrom) or repayment of other Indebtedness or Disqualified
Stock, at any time subsequent to the beginning of the Reference Period and on or
prior to the date of determination, as if such Incurrence or issuance (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of the Reference Period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average balance of such Indebtedness at the end
of each month during such period), and (ii) any acquisition at any time on or
subsequent to the first day of the Reference Period and on or prior to the date
of determination, as if such acquisition or disposition (including the
Incurrence, assumption or liability for, or repayment of, any such Indebtedness
and the issuance of such Disqualified Stock and also including any Consolidated
Cash Flow associated with such acquisition) and occurred on the first day of the
Reference Period giving pro forma effect to any non-recurring expenses,
non-recurring costs and cost reductions within the first year after such
acquisition the Company reasonably anticipates in good faith if the Company
delivers to the Trustee an officer's certificate executed by the chief financial
or accounting officer of the Company certifying to and describing and
quantifying in reasonable detail such non-recurring expenses, non-recurring
costs and cost reductions. Furthermore, in calculating Consolidated
7
Interest Expense for purposes of the calculation of Consolidated Cash Flow, (a)
interest on Indebtedness determined on a fluctuating basis as of the date of
determination (including Indebtedness actually incurred on the date of the
transaction giving rise to the need to calculate the Consolidated Leverage
Ratio) and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness as in effect on the date of determination and (b) notwithstanding
(a) above, interest determined on a fluctuating basis, to the extent such
interest is covered by Hedging Obligations, shall be deemed to accrue at the
rate per annum resulting after giving effect to the operation of such
agreements.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, plus, to the extent that any of the following items were
deducted in computing such Consolidated Net Income, (i) non-recurring non-cash
charges (other than charges arising from write-downs of assets) and (ii)
non-cash compensation charges arising from stock options or other similar
employee benefit compensation plans provided that (a) the Net Income (but not
loss) of any person that is not a Restricted Subsidiary or that is accounted for
by the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to such Person or a Wholly
Owned Restricted Subsidiary thereof by such Restricted Subsidiary, (b) for
purposes of clause (c) of Section 4.07 hereof, the Net Income of any Restricted
Subsidiary of such Person shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted without any
prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its shareholders, except that the Company's equity in the net
income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such period to the Company
or another Restricted Subsidiary as a dividend, (c) the net income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded, (d) the equity of the Company or any
Restricted Subsidiary in the net income of any Unrestricted Subsidiary shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Unrestricted Subsidiary during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution (but not
in excess of the amount of the net income of such Unrestricted Subsidiary for
such period) and (e) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to the Company as
of any date, the sum of (i) the consolidated equity of the common shareholders
of the Company and, without duplication, its consolidated Restricted
Subsidiaries as of such date plus (ii) the respective amounts reported on the
Company's balance sheet as of such date with respect to any series of preferred
stock (other than Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid only out of
net earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by the Company upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
8
business made within 12 months after the acquisition of such business)
subsequent to the date of the Indenture in the book value of any asset owned by
the Company or a consolidated Restricted Subsidiary of the Company, (y) all
investments as of such date in unconsolidated Restricted Subsidiaries and in
Persons that are not Restricted Subsidiaries (except, in each case, Permitted
Investments), and (z) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in accordance
with GAAP.
"Continuing Directors" means individuals who on the Issue Date
constituted the Board of Directors of the Company, together with any new
directors whose (i) election by such Board of Directors or whose nomination for
election by the shareholders of the Company, was approved by a vote of at least
a majority of the directors of the Company then still in office who were either
directors on the Issue Date or whose election or nomination for election was
previously so approved or (ii) were designated by any one of the Permitted
Holders or any combination thereof or were nominated or elected by any such
Permitted Holder(s) or any of their designees.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Debtor Parties.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement as
to which such Person is a party or beneficiary.
"Debt Securities" means any bonds, notes, debentures or other
similar instruments (excluding, in any event, (i) any Capital Lease Obligations
and (ii) any notes, bankers' acceptances or other instruments evidencing
commercial loans or equipment financing made by, and bills of exchange drawn on,
banks, other financial lending institutions or equipment vendors) issued by the
Company or by any Restricted Subsidiary (including by means of any Guarantee of
the Company or of any Restricted Subsidiary of securities of another Person),
whether in a public offering or private placement; provided, however, that in no
event shall "Debt Securities" mean Indebtedness in the form of a bank credit
facility.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Deferred Revenue" means amounts appearing as a liability on
the financial statements of the Company as prepared in accordance with GAAP
classified as deferred revenue to the extent of cash received in connection
therewith.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Article II hereof,
substantially in the form of Exhibit A hereto, except that such Note shall not
bear the Global Note Legend.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.02(e) hereof as the Depositary with respect to the Notes, until a successor
shall have been appointed and become such pursuant to the
9
applicable provision of this Indenture, and, thereafter, "Depositary" means or
include such successor.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or
upon the happening of any event (other than an option call for redemption by the
issuer thereof), matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or redeemable at the option of the holder thereof,
in whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature, provided that any Capital Stock which would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require the Company to repurchase or redeem such Capital Stock upon
the occurrence of a Change of Control or an Asset Sale occurring prior to the
final Stated Maturity of the Notes shall not constitute Disqualified Stock if
the change of control and asset sale provisions applicable to such Capital Stock
are no more favorable to the holders of such Capital Stock than the provisions
applicable to the Notes contained in Sections 4.14 and 4.10 hereof,
respectively, and such Capital Stock specifically provides that the Company will
not repurchase or redeem any such Capital Stock pursuant to such provisions
prior to the Company's repurchase or redemption of such Notes as are required to
be repurchased or redeemed pursuant to Sections 4.14 and 4.10 hereof,
respectively.
"Euroclear" means JPMorgan Chase Bank, Brussels office, as
operator of The Euroclear System.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offering for cash by the Issuer or
the Company of its common stock, or options, warrants or rights to acquire such
common stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement)
in existence on the date hereof, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date hereof.
"GCUK" means Global Crossing Intermediate UK Holdings Ltd.
(UK), a company organized under the laws of the England and Wales.
"Global Marine" means Global Marine Systems Limited, a company
organized under the laws of the England and Wales.
10
"Global Note" means any Note issued hereunder in registered
global form in the name of the Depositary or its nominee.
"Global Note Legend" has the meaning provided in Section
2.05(d) hereof.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Guarantee Supplement" means a Supplement to this Indenture,
substantially in the form of Exhibit B hereto, executed after the date hereof by
any Subsidiary of the Company.
"Guaranteed Obligations" means the obligation of the Issuer to
make the full and punctual payment of principal of and interest on the Notes
when due, whether at maturity, by acceleration, by redemption, by required
repurchase or otherwise, and all other monetary obligations of the Issuer under
this Indenture and the Notes.
"Guarantors" means each party named as such on the signature
pages to this Indenture, and each party that shall become a Guarantor hereunder
after the date hereof pursuant to Section 4.15 hereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any Interest Rate Agreement or Currency
Agreement.
"Holder" means a Person in whose name a Note is registered.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for, provided that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or bankers'
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations (taking into account such Hedging Obligation's xxxx-to-market
value), except any such balance that constitutes an accrued expense or trade
payable, if and to the extent any of the foregoing (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP, as well as all Indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
Indebtedness is
11
assumed by such Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Intercreditor Agreement" means an Intercreditor Agreement,
substantially in the form of Exhibit C hereto, as the same shall be modified and
supplemented and in effect from time to time.
"Interest Payment Date" means each semi-annual interest
payment date which shall fall on __________ and __________ of each year, and the
date of the Stated Maturity of the Notes, subject in each case to Section 13.06
hereof. Interest on the Notes will accrue on the principal amount of the Notes
from the Issue Date.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or
beneficiary.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including Guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to directors, officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any of its Restricted Subsidiaries sells
or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company or
such Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Restricted Subsidiary not sold or disposed
of in an amount determined as provided in the final paragraph of Section 4.07
hereof.
"Issue Date" means __________, the date on which the Notes
were issued.
"Issuer" means the party named as such in the first paragraph
of this Indenture.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by an officer of the Issuer with actual
authority to bind the Issuer on such matters, and delivered to the Trustee.
12
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in, and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Management Advances" means loans or advances made to
directors, officers or employees of the Company or any Restricted Subsidiary (i)
in respect of travel, entertainment or moving-related expenses incurred in the
ordinary course of business, (ii) in respect of moving-related expenses incurred
in connection with any closing or consolidation of any facility, or (iii) in the
ordinary course of business not exceeding $50.0 million in the aggregate at any
time outstanding.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor thereto.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends, excluding, however, (a) any
gain (or loss), together with any related provision for taxes on such gain (or
loss), realized in connection with (i) any Asset Sale (including, without
limitation, dispositions made pursuant to sale and leaseback transactions) or
(ii) the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (b) any extraordinary gain or loss, together
with any related provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Preferred Shares" means the Company's ___% preferred
shares __________.
"Non-Recourse Debt" means Indebtedness (a) as to which neither
the Company nor any Restricted Subsidiary (i) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (ii) is directly or
indirectly liable (as a guarantor or otherwise) and (b) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
13
"Note Guarantee" means the Guarantee of the Notes provided in
Article XI hereof.
"Note Register" has the meaning provided in Section 2.03
hereof.
"Notes" has the meaning provided in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Debtor Party, the
Chairman of the Board, President, the Chief Executive Officer, the Chief
Financial Officer, any Senior Vice President, any Vice President or the
Secretary of the Debtor Party or any other person who has actual authority to
bind such Debtor Party thereto on such matters.
"Officers' Certificate" means a certificate signed by two
Officers of the Company which complies with the requirements hereof, each of
which shall include the statements provided for in Section 13.04 hereof.
"Opinion of Counsel" means a written opinion signed by legal
counsel who is acceptable to the Trustee, which counsel may be an employee of or
counsel to the Company or the Trustee, and which Opinion of Counsel shall
include the statements provided for in Section 13.04 hereof.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under this Indenture or the Notes or from
the execution, delivery or enforcement of, or otherwise with respect to, this
Indenture or the Notes.
"PCL" means Pacific Crossing Ltd.
"Permitted Business" means any business that is the same as or
related, ancillary or complementary to any of the businesses of the Company or
any of its Subsidiaries on the date of this Indenture.
"Permitted Holder" means __________ and their respective
Subsidiaries and Affiliates.
"Permitted Investments" means (a) any Investment in the
Company or in Restricted Subsidiaries of the Company that are engaged in a
Permitted Business; (b) any Investment in Cash Equivalents; (c) any Investment
by the Company or any of its Restricted Subsidiaries in a Person, if as a result
of such Investment (i) such Person becomes a Restricted Subsidiary of the
Company that is engaged in a Permitted Business or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company that is engaged in a Permitted Business; (d) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
14
(e) any acquisition of property solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company; (f) other Investments
having an aggregate fair market value (measured on the date each such Investment
was made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (f) after the
Issue Date that are at the time outstanding) not to exceed $75.0 million; and
(g) any investment by the Company or a Restricted Subsidiary in any Person
engaged in a Permitted Business with the Company or such Restricted Subsidiary,
provided that such investment is necessary or integral to the Company's or such
Restricted Subsidiary's Permitted Business and provided, further that any such
investment is the minimum amount reasonably necessary for such Permitted
Business and to comply with local law.
"Permitted Liens" means (a) Liens to secure Indebtedness
permitted to be Incurred under this Indenture and the Security Documents; (b)
Liens to secure Obligations on the Notes and the Note Guarantees under this
Indenture and the Security Documents; (c) Liens in favor of the Issuer, the
Company or any Restricted Subsidiary; (d) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds, or other
obligations of a like nature incurred in the ordinary course of business; (e)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (f) Liens, pledges and deposits made in the ordinary course
of business in connection with workers' compensation, unemployment insurance and
other types of statutory obligations; (g) Liens, pledges or deposits made to
secure the performance of tenders, bids, leases, public or statutory
obligations, sureties, indemnities, performance or other similar bonds and other
obligations of like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (h) 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 materially interfere with the ordinary conduct of
the business of the Company or its Restricted Subsidiaries; (i) Liens arising
out of judgments or awards against or other court proceedings concerning the
Company or any Restricted Subsidiary with respect to which the Company or such
Restricted Subsidiary is prosecuting an appeal or proceeding for review and the
Company or such Restricted Subsidiary is maintaining adequate reserves in
accordance with GAAP; (j) Liens securing Indebtedness referred to in clause (e)
of the second paragraph of Section 4.09 hereof, provided that the aggregate
amount of Indebtedness entitled to the benefits of such Liens (including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any
such Indebtedness) shall not to exceed $_________ at any time outstanding; (k)
Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any of its Restricted Subsidiaries
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or such Restricted
Subsidiary; (l) Liens on property existing at the time of acquisition thereof by
the Company or any of its Restricted Subsidiaries, provided that such Liens were
in existence prior to the contemplation of such acquisition; (m) Liens existing
on the date of the Indenture; (n) Liens incurred in the ordinary course of
business (including mechanics liens) of the Company or any of its Restricted
Subsidiaries with respect to obligations that do not exceed $50.0 million at any
one time
15
outstanding and that (a) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credits in the
ordinary course of business) and (b) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of business by the Company or such Restricted Subsidiary; (o) Liens
with respect to assets of a Restricted Subsidiary granted by such Restricted
Subsidiary to the Company or a Restricted Subsidiary to secure Indebtedness
owing to the Company or such Restricted Subsidiary; (p) Liens on shares of
Unrestricted Subsidiaries; and (p) any interest or title of a lessor in the
property subject to any lease other than a capital lease.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness), provided that: (a) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (b) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (c) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is expressly
subordinated in right of payment to, the Notes and Note Guarantees on terms at
least as favorable to the Holders of the Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (d) such Indebtedness is Incurred either by
the Company or the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Preferred Stock," of any Person, means Capital Stock of such
Person of any class or series (however designated) that ranks prior, as to
payment of dividends or as to the distribution of property upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class or series of such Person.
["Project Subsidiary" means any Subsidiary of the Company
formed to develop, own and operate undersea fiber optic telecommunications cable
systems.]
"Purchase Money Indebtedness" means Indebtedness (including
Acquired Debt and Capital Lease Obligations, mortgage financings and purchase
money obligations) incurred for the purpose of financing all or any part of the
cost of construction, financing, installation, acquisition, lease, development,
design, engineering, financing, testing, start-up, upgrade, completion or
improvement of any assets used or useful in a Permitted Business, including any
16
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.
"Regular Record Date" for the interest payable (a) on any
Interest Payment Date means the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date and
(b) on the date of the Stated Maturity of the Notes means the day (whether or
not a Business Day) immediately preceding such date.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means, collectively, each security
agreement, pledge agreement, assignment, mortgage or other similar instrument or
documents entered into or delivered pursuant to Article VI hereof, in each case
as the same shall be modified and supplemented and in effect from time to time.
"Senior Collateral" means all of the Collateral other than (a)
all Equity Interests in GCUK and Global Marine and their respective Subsidiaries
and (b) all property of GCUK and Global Marine and their respective
Subsidiaries.
"Senior Debt" means:
(1) all Indebtedness of the Company or any Guarantor
outstanding under [Credit Facilities] and all Hedging Obligations with
respect thereto;
(2) any other Indebtedness of the Company or any Guarantor
permitted to be incurred under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the
Notes or any Guarantee, and
(3) all Obligations with respect to the items listed in the
preceding clauses (1) and (2).
17
Notwithstanding anything to the contrary in the foregoing, Senior Debt
will not include:
(1) any liability for federal, state, local or other taxes
owed or owing by the Company;
(2) any Indebtedness of the Company to any of its Restricted
Subsidiaries or other Affiliates;
(3) any Indebtedness incurred for the purchase of goods or
materials or for services obtained in the ordinary course of business
(other than with the proceeds of revolving credit borrowings permitted
hereby); or
(4) the portion of any Indebtedness that is incurred in
violation of this Indenture.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (b) any partnership (i) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (ii) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Successor Entity" means any Person which, as a result of a
Person converting into, or merging, consolidating or amalgamating with or into,
or selling, transferring or conveying all or substantially all of its property
to, or being liquidated into, such Person, succeeds to the interests of such
Person.
"Taxes" means all taxes, duties, assessments or other
governmental charges of whosoever nature, including penalties, interest and any
other liabilities related thereto.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended (15 U.S. Code 77aaa-77bbb), as in effect from time to time
until this Indenture is qualified under the Trust Indenture Act and, after such
qualification, means such Act as in effect on the date of such qualification,
except as provided in Section 10.06 hereof, provided that in the event the Trust
Indenture Act of 1939 is amended after such date, "TIA" or "Trust Indenture Act"
means, to the extent required by any such amendments, the Trust Indenture of
1939 as so amended.
18
"Trustee" means the party named as such in the first paragraph
of this Indenture until a Successor Entity replaces it in accordance with the
provisions of Article VIII hereof, and, thereafter, such term means such
Successor Entity.
"United States Bankruptcy Code" has the meaning provided in
the recitals hereto.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (c) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. Any such designation by the Board of Directors
shall be evidenced by filing with the Trustee a certified copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted under Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of the Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
(and, if such Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company shall be in default of such covenant). The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence, effective immediately following such designation,
of Indebtedness by such Restricted Subsidiary of any outstanding Indebtedness of
such Unrestricted Subsidiary and such designation shall only be permitted if (i)
such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, and (ii) no Default or Event of Default would be
in existence following such designation. Without limiting the foregoing for the
convenience of parties, [Schedule 1] hereto sets forth all Unrestricted
Subsidiaries and Restricted Subsidiaries as of the date hereof.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of
19
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Working Capital Facility" means, a facility entered into by
the Issuer or an affiliate of the Issuer, and one or more of the Subsidiaries of
the Company as guarantors, with one or more banks or other institutional lenders
providing for the making of revolving credit loans to the Issuer, and the
issuance of letters of credit for the account of the Issuer, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Additional Amounts" 3.08
------------------
"Affiliate Transaction" 4.11
---------------------
"Asset Sale Offer" 3.09
----------------
"Change of Control Offer" 4.14
-----------------------
"Change of Control Payment" 4.14
-------------------------
"Change of Control Payment Date" 4.14
------------------------------
"Event of Default" 7.01
----------------
"Excess Proceeds" 4.10
---------------
"Offer Amount" 3.09
------------
"Offer Period" 3.09
------------
"Paying Agent" 2.03
------------
"Purchase Date" 3.09
-------------
"Registrar" 2.03
---------
"Restricted Payments" 4.07
-------------------
SECTION 1.03. Trust Indenture Act Definitions.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
20
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Issuer and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it in this
Indenture;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with
GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural and
words in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and
not to any particular Article, Section or
other subdivision;
(7) all ratios and computations based on GAAP
contained in this Indenture shall be computed
in accordance with the definition of GAAP set
forth above;
(8) "including" means "including without
limitation"; and
(9) all references to Sections or Articles refer
to Sections or Articles of this Indenture
unless otherwise indicated.
ARTICLE II THE NOTES
SECTION 2.01. Form and Dating.
(a) Form of Notes. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto which is
hereby incorporated in and expressly made a part of this Indenture with the
applicable securities legends. The Notes may
21
have notations, legends or endorsements required by law, stock exchange rules or
agreements to which the Issuer is subject, if any, or usage. The Issuer shall
approve the form of the Notes and any notation, legend or endorsement on the
Notes. Each Note shall be dated the date of its authentication.
(b) Manner of Production. The certificates representing the
Notes shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which the Notes may be listed, all as
determined by the Officers of the Issuer executing such Notes, as evidenced by
their execution of such Notes.
SECTION 2.02. Execution, Authentication and Denominations.
(a) Execution. Two Officers shall execute the Notes for the
Issuer by facsimile or manual signature in the name and on behalf of the Issuer.
The seal of the Issuer, if any, shall be reproduced on the Notes. If an Officer
whose signature is on a Note no longer holds that office at the time the Trustee
or authenticating agent authenticates the Note, the Note shall be valid
nevertheless.
(b) Issuance of Notes. The Trustee or any duly appointed
authenticating agent shall authenticate and deliver Notes upon receipt of an
Issuer Order and an Officers' Certificate and, if so requested by the Trustee,
an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication of Notes. Such Issuer Order shall specify
the amount of Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated. Unless otherwise specified in such Issuer
Order, the Notes shall be issued as Global Notes. On the date hereof, the
aggregate principal amount of Notes outstanding shall equal $200,000,000, and
the aggregate principal amount of Notes outstanding at any time thereafter shall
not exceed said amount, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 2.05, 2.06, 2.07 or 2.08 hereof.
(c) Authentication Agents. The Trustee may appoint an
authenticating agent to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such authenticating agent. An authenticating agent
has the same rights as an Agent to deal with the Issuer or an Affiliate of the
Issuer.
(d) Certificates of Authentication. A Note shall not be valid
until the Trustee or any duly appointed authenticating agent manually signs the
certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(e) Global Notes. Unless otherwise specified in an Issuer
Order as contemplated by Section 2.02(b) hereof, the Notes shall be issued in
the form of Global Notes, and the Depository thereof shall initially be the
Depository Trust Company or any successor thereof.
22
(f) Denominations. The Notes shall be issuable only in fully
registered form, without coupons, in minimum denominations of $1,000.
SECTION 2.03. Registrar and Paying Agent.
(a) Registrar. The Issuer shall maintain an office or agency
where Notes may be presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Notes may be presented for payment
(the "Paying Agent"). The Registrar shall keep a register of the Notes and of
their transfer and exchange (the "Note Register"). The Issuer may have one or
more co-registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional paying agents.
(b) Agents. The Issuer shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture which shall incorporate
the terms of the TIA, to the extent required under the TIA. Such agreement shall
implement the provisions of this Indenture that relate to such Agent. The Issuer
shall give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Issuer fails to
maintain a Registrar and/or Paying Agent, the Trustee shall act as such
Registrar, Paying Agent and/or agent for service of notices and demands. The
Issuer may remove any Agent upon written notice to such Agent and the Trustee,
provided that no such removal shall become effective until (i) the acceptance of
an appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Issuer and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company, any Subsidiary of the
Company or any Affiliate of any of them may act as Paying Agent, Registrar or
co-registrar.
(c) Initial Appointments. The Issuer initially appoints the
Trustee as Registrar and Paying Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee, on or before each
Interest Payment Date and at such other times as the Trustee may reasonably
request, the names and addresses of the Holders as they appear in the Note
Register.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Prior to 3:00 p.m., New York City time, on the Business Day
immediately preceding each due date of the principal and interest on any Notes,
the Issuer shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such principal and interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal or
interest, if any, and (unless such Paying Agent is the Trustee) the Issuer will
promptly notify the Trustee of such action or any failure so to act.
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 2.04,
that such Paying Agent will:
23
(a) hold all sums held by it for the payment of the principal
of or interest on Notes 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;
(b) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) in the making of any payment of
principal or interest, if any;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating 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
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 and
remaining unclaimed for two years after such principal or interest has become
due and payable shall be paid to the Issuer at the request of the Issuer; and
the Holder of such Note 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 shall thereupon cease, provided
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Issuer cause notice to be promptly sent
to each Holder 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
notification, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 2.05. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Issuer for Definitive Notes in whole (i) if the Issuer
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days after the date of such
notice from the Depositary, (ii) the Company in its sole discretion determines
that Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee, or (iii) at
any time or from time to time following the occurrence of any Default or Event
of Default, at the request of any Holder. Upon the
24
occurrence of either of the preceding events in the preceding clause (i), (ii)
or (iii), Definitive Notes shall be issued in such names and in such amounts, as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in this Section 2.05 and Sections
2.06 and 2.08 hereof. Every Note authenticated and made available for delivery
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.05 or Section 2.06 or 2.08 hereof, shall be authenticated and,
except as provided in the second sentence of this Section 2.05(a), be made
available for delivery in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this
Section 2.05(a), provided that beneficial interests in a Global Note may be
transferred and exchanged consistent with the provisions hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures.
(c) Transfer and Exchange of Definitive Notes. Upon request by
a Holder of Definitive Notes and such Holder's compliance with the provisions of
this Section 2.05(c), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing.
(d) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form (the "Global Note Legend"):
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
25
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."
(e) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.09 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or by the Depositary at the direction of the
Trustee, to reflect such reduction.
(f) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon receipt of an Issuer Order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, provided that the
Issuer may require a payment of a sum sufficient to cover transfer tax,
assessments, or similar governmental charge payable in connection
therewith.
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note that is to be redeemed in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall constitute the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) Neither the Issuer nor the Registrar shall be required (A)
to issue, to register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before the date of
any redemption of Notes under Article III hereof and ending at the
close of business on the date of such redemption or (B) to register the
transfer of or to exchange a Note between a record date and the
Interest Payment Date corresponding thereto.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Issuer, the Trustee and any Agent may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Issuer, the Guarantors, the Trustee or any Agent shall be
affected by notice to the contrary.
26
SECTION 2.06. Replacement Notes.
(a) Mutilated Notes, Etc. If a mutilated Note is surrendered
to the Registrar or if the Holder claims that the Note has been lost, destroyed
or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note of like tenor in the absence of notice to the Issuer or the
Trustee that such Note has been acquired by a bona fide purchaser and if the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder
sufficient in the judgment of the Trustee and the Issuer to protect the Issuer
and the Trustee and any agent of the Issuer and the Trustee from any loss which
any of the them may suffer if a Note is replaced. In case any such mutilated,
lost, destroyed or wrongfully taken Note has become or is about to become due
and payable, the Issuer in its discretion may redeem such Note instead of
issuing a new Note in replacement thereof.
(b) Replacement Notes. Every replacement Note is an
additional obligation of the Issuer and shall be entitled to the benefits of
this Indenture and of the Note Documents.
SECTION 2.07. Outstanding Notes.
(a) Outstanding Generally. Notes outstanding at any time shall
include all Notes that have been authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in
this Section 2.07 as not outstanding. If a Note is replaced pursuant to Section
2.06 hereof, it ceases to be outstanding unless and until the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide
purchaser. If the Paying Agent separates and holds in trust, on a maturity date,
money sufficient to pay Notes on such date, then on and after such date, such
Notes cease to be outstanding hereunder and interest thereon shall cease to
accrue.
(b) Notes Held by Issuer or Affiliates. A Note does not cease
to be outstanding because the Issuer or one of its Affiliates holds such Note,
or because a Holder holds more than a specified percentage of the Notes,
provided that (i) in determining whether the Holders of the requisite principal
amount of the outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by the Issuer or any
other obligor upon the Notes or any Affiliate of the Issuer or of such other
obligor, or any Holder that holds more than 15% of the aggregate outstanding
principal amount of the Notes, shall be disregarded and deemed not to be
outstanding and (ii) in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes which a Responsible Officer of the Trustee knows to be so
owned, as conclusively evidenced by the Note Register, shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or
of such other obligor, or a Holder that holds more than 15% of the aggregate
outstanding principal amount of the Notes. On the Issue Date, the Issuer shall
furnish the Trustee with an Officers' Certificate certifying the names of all
Subsidiaries and all persons known to the Issuer to be Affiliates of the Issuer.
The Issuer shall update such information from time to time by
27
further Officers' Certificates delivered promptly, after each request therefor
from the Trustee. The Trustee may conclusively rely on the most recent such
Officers' Certificate received by it.
SECTION 2.08. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers of the Issuer executing the temporary Notes, as evidenced by their
execution of such temporary Notes. If temporary Notes are issued, the Issuer
shall cause definitive Notes to be prepared without unreasonable delay. After
the preparation of definitive Notes, the temporary Notes shall be exchangeable
for definitive Notes upon surrender of the temporary Notes at the office or
agency of the Issuer designated for such purpose pursuant to Section 2.03
hereof, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.09. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee and
no other Person shall cancel all Notes surrendered for registration of transfer,
exchange, payment or cancellation and shall dispose of them in accordance with
its normal procedure. The Issuer may not issue new Notes to replace Notes it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.10. CUSIP Numbers.
The Issuer in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders. Any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers, if any,
printed on the Notes.
SECTION 2.11. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes,
it shall pay or cause to be paid, or shall deposit or cause to be deposited with
the Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. The Issuer shall fix or cause to be fixed any such special record
date and payment date to the reasonable satisfaction of the Trustee and shall,
at least 15 days before the subsequent special record date, mail to each Holder
and the Trustee a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid. A "special record date", as
used in this Section 2.11 with respect to the payment of any defaulted interest,
shall mean the fifteenth
28
day next preceding the date fixed by the Issuer for the payment of defaulted
interest, whether or not such day is a Business Day.
SECTION 2.12. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee, in writing at least five Business Days before each
Interest Payment Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.
SECTION 2.13. Communication By Holders with Other Holders.
Pursuant to Section 312(b) of the TIA, Holders may communicate
with other Holders with respect to their rights under this Indenture or the
Notes. The Issuer, the Trustee, the Registrar and the Paying Agent shall be
entitled to the protections of Section 312(c) of the TIA.
ARTICLE III REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07
hereof, it shall furnish to the Trustee, at least 30 days but not more than 60
days before the redemption date, an Officers' Certificate setting forth (i) the
provision of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed and (iv)
the redemption price.
SECTION 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall redeem or purchase Notes,
or portions thereof, in such amounts as shall be necessary so that such
redemption or purchase is applied to the principal amount of the Notes on a pro
rata basis. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Issuer shall mail or cause to be mailed, by first class mail, a notice
of redemption to each Holder whose Notes are to be redeemed at its registered
address.
29
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date; and
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense, provided that the Issuer
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. Deposit of Redemption Price.
Prior to 10 a.m. on the redemption date, the Issuer shall
deposit with the Trustee or with the Paying Agent cash or Cash Equivalents
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Issuer any cash or Cash Equivalents deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related
30
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Issuer to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer
shall issue and, upon the Issuer's written request, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
The Issuer may at any time, and from time to time, at its
option, redeem the Notes in whole or in part, in a minimum aggregate redemption
amount of $_____________, upon not less than 30 nor more than 60 days' notice,
at a redemption price equal to 100% of the principal amount of thereof, plus
accrued and unpaid interest thereon, if any, to the applicable redemption date
(subject to the right of Holders of record on the relevant interest record date
to receive interest due on the relevant interest payment date). Any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
SECTION 3.08. Payment of Additional Amounts.
If any deduction or withholding for any present or future
taxes, assessments or other governmental charges of (x) the jurisdiction in
which the Issuer is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax or (y) any jurisdiction,
other than the United States, from or through which payment on any Notes is made
by the Issuer or its paying agent in its capacity as such or any political
subdivision or governmental authority thereof or therein having the power to
tax, shall at any time be required by such jurisdiction (or any such political
subdivision or taxing authority) in respect of any amounts to be paid by the
Issuer under any Notes, the Issuer will pay to each Holder as additional
interest, such additional amounts ("Additional Amounts") as may be necessary in
order that the net amounts paid to such Holder, after such deduction or
withholding, shall be not less than the amount specified in such Notes to which
such Holder is entitled, provided that the Issuer shall not be required to make
any payment of Additional Amounts for or on account of:
(a) income or franchise taxes imposed on (or measured by) such
Holder's gross receipts or net income by (i) the United States of
America, or (ii) by the jurisdiction under the laws of which such
recipient is organized, in which its principal office is located, in
which its applicable lending office is located, or in which it is
otherwise subject to net income or franchise taxes other than as a
result of entering into this Indenture or engaging in any of the
transactions contemplated by this Indenture;
(b) any branch profits taxes imposed by the United States of
America;
31
(c) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the
beneficial owner of the Note to comply with a request of the Issuer
addressed to the Holder (i) to provide information, documents or other
evidence concerning the nationality, residence or identity of the
Holder or such beneficial owner or (ii) to make and deliver any
declaration or other similar claim (other than a claim for refund of a
tax, assessment or other governmental charge withheld by the Issuer) or
satisfy any information or reporting requirements, which, in the case
of the foregoing clause (i) or (ii), is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such
tax, assessment or other governmental charge (including completing and
delivering the forms described below in this Section 3.08);
(d) Any tax, assessment or other governmental charge that
would not have been imposed but for (i) 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, limited
liability company or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area
subject to its jurisdiction, 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 a trade or business therein or
having or having had a permanent establishment therein, (ii) the
presentation of a Note (where presentation is required) for payment on
a date more than 30 days after (x) the date on which such payment
became due and payable or (y) the date on which payment thereof is duly
provided for, whichever occurs later, or (iii) the presentation of a
Note for payment in Bermuda or any political subdivision thereof or
therein, unless such Note could not have been presented for payment
elsewhere;
(e) Any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
(f) Any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payment of principal of,
premium, if any, or any interest on the Notes;
(g) Any U.S. federal withholding tax to the extent that the
obligation to withhold such tax existed on the date a Holder became a
party to this Indenture or, with respect to payments to a New Lending
Office (as defined below), the date such Holder designated such New
Lending Office with respect to a Note; or
(h) Any combination of items (a), (b), (c), (d), (e), (f)
and (g) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any premium or interest on, any Note to any Holder who is a
fiduciary or partnership or limited liability company or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of (x) the jurisdiction in which the Issuer is organized or any
political subdivision or governmental authority thereof or therein having the
power to tax,
32
(y) any jurisdiction, other than the United States, from or through which
payment on the Notes is made by the Company or a successor corporation, or its
paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax to be included in the
income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership, limited liability company or
beneficial owner who would not have been entitled to such Additional Amounts had
it been the Holder of such Note.
Each Holder or beneficial owner of a Note that is not a
citizen or resident of the United States of America, a corporation (or other
entity treated as a corporation for United States federal tax purposes) or
partnership created or organized in or under the laws of the United States of
America (or any jurisdiction thereof), any estate that is subject to federal
income taxation regardless of the source of its income or any trust, if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. persons have the authority to
control all substantial decisions of the trust (a "Non-U.S. Holder") shall
deliver to the Issuer and the Agent two copies of either (i) U.S. Internal
Revenue Service Form W-8BEN (claiming exemption from, or a reduction of, U.S.
federal withholding tax under an income tax treaty) or (ii) Form W-8ECI
(claiming exemption from U.S. federal withholding tax because the income is
effectively connected with a U.S. trade or business), or, (iii) in the case of a
Non-U.S. Holder claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" a statement in form and substance reasonably acceptable to Issuer
representing that such Non-U.S. Holder is not a "bank" for purposes of Section
881(c) of the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Issuer and is not a "controlled foreign
corporation" related to the Issuer (within the meaning of Section 864(d)(4) of
the Code) and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Holder claiming
(to the extent entitled thereto) complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Issuer under this Indenture,
and any other form reasonably requested by the Issuer. Each Holder or beneficial
owner of a Note that is a citizen or resident of the United States of America, a
corporation (or other entity treated as a corporation for United States federal
tax purposes) or partnership created or organized in or under the laws of the
United States of America (or any jurisdiction thereof), any estate that is
subject to federal income taxation regardless of the source of its income or any
trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more U.S. persons
have the authority to control all substantial decisions of the trust (a "U.S.
Holder") shall deliver to Issuer and Agent two copies of U.S. IRS form W-9
(certifying it is entitled to an exemption from U.S. backup withholding tax) or
any subsequent versions thereof or successors thereto properly completed and
duly executed by such U.S. Holder claiming (to the extent entitled thereto)
complete exemption from U.S. backup withholding tax on all payments by the
Issuer under this Indenture, and any other form reasonably requested by Issuer.
Such forms shall be delivered by each Non-U.S. Holder or U.S. Holder on or
before the date it becomes a party to this Indenture, and on or before the date,
if any, such Non-U.S. Holder or U.S. Holder changes its applicable lending
office by designating a different lending office (the "New Lending Office"). In
addition, each Non-U.S. Holder and each U.S. Holder shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
33
such Non-U.S. Holder or such U.S. Holder, promptly after the occurrence of any
event requiring a change in the most recent form or certification previously
delivered by such Non-U.S. Holder or such U.S. Holder to the Issuer and the
Agent, and promptly upon the request of the Issuer or the Agent. Each Non-U.S.
Holder and U.S. Holder shall promptly notify the Issuer and the Agent at any
time it determines that it is no longer in a position to provide any previously
delivered form or certificate to the Issuer and the Agent (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
The Issuer shall provide the Trustee with the official
acknowledgment of the relevant taxing authority (or, if such acknowledgment is
not available, a certified copy thereof) evidencing the payment of the
withholding taxes, if any, by the Issuer. Copies of such documentation shall be
made available to the Holders or the Paying Agent, as applicable, upon request
therefor.
All references in this Indenture to principal of and interest
on the Notes shall include any Additional Amounts payable by the Company in
respect of such principal and such interest.
SECTION 3.09. Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuer
shall be required to commence an offer to all Holders to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of at
least 20 Business Days following its commencement (the "Offer Period"). No later
than five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Issuer shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuer shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
34
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Issuer defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Issuer,
a Depositary, if appointed by the Issuer, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(f) that Holders shall be entitled to withdraw their election
if the Issuer, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered, for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Issuer shall
select the principal of the Notes to be purchased on a pro rata basis;
and
(h) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before 10:00 a.m. on the Purchase Date, the Issuer
shall, to the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Issuer in
accordance with the terms of this Section 3.10. The Issuer, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Issuer for purchase, and the Issuer shall promptly issue a new
Note, and the Trustee, upon written request from the Issuer shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.10, any
purchase pursuant to this Section 3.10 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
35
ARTICLE IV COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of and
interest, if any, on the Notes on the dates and in the manner provided in the
Notes. Principal and interest, if any, shall be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as
of 10:00 a.m. Eastern Time on the due date money deposited by the Issuer in
immediately available funds and designated for and sufficient to pay all
principal and interest, if any, then due.
The Issuer shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall 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.
The Issuer may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations,
provided 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 for such purposes. The Issuer shall 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.
The Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer.
SECTION 4.03. Reports.
So long as any Notes are outstanding and until the Company
becomes subject to SEC reporting requirements, the Company will distribute to
the Holders, (i) quarterly unaudited financial statements beginning with the
first full fiscal year after the date of this Indenture, and
36
(ii) annual audited financial statements beginning with the fiscal year ended
December 31, 2003. Additionally, until the Company becomes subject to SEC
reporting requirements, the Company will ensure that there is publicly available
the information concerning the Company specified in Rule 144(c)(2) under the
Securities Act.
The Company shall also use its reasonable commercial efforts
to ensure that the information concerning the Company required pursuant to Rule
15c2-11 under the Exchange Act is available to brokers and dealers; provided,
that this sentence shall not be interpreted to require the Company to make
available audited financial statements sooner than otherwise required by this
Indenture or by applicable Law.
SECTION 4.04. Compliance Certificate, Etc.
(a) Compliance Certificate. The Issuer on behalf of itself and
each Guarantor shall deliver to the Trustee (to the extent that such Guarantor
is so required under the TIA), upon the Trustee's written request within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Debtor Parties have kept,
observed, performed and fulfilled their obligations under this Indenture and the
Security Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Debtor Parties have
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and the Security Documents and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture and the Security Documents (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Debtor Parties are taking or propose
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action the
Debtor Parties are taking or propose to take with respect thereto. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
(b) Reports from Independent Accountants. So long as not
contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03(a) hereof shall be accompanied by a written statement
of the Company's independent public accountants (who shall be a firm of
established national reputation in the United States) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of Article IV, V or VI hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) Notice of Defaults. In the event that any Debtor Party
becomes aware of any events which would constitute a Default or Event of
Default, the Company within five Business Days after it becomes aware thereof,
shall give to the Trustee written notice of such
37
events, their status and the nature of any actions taken or proposed to be taken
by the Company in respect of such events.
SECTION 4.05. Taxes.
Without prejudice to the Security Documents, the Company shall
pay or discharge, and shall cause each of its Subsidiaries to pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent all
material taxes, assessments and governmental charges levied except such as are
contested in good faith and by appropriate proceeding or where the failure to
effect such payment is not adverse in any material respect to the Holders of the
Notes.
SECTION 4.06. Stay, Extension and Usury Laws.
Each of the Issuer and the Guarantors agrees (to the extent
that it may lawfully do so) that it shall 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 or any usury law or other law that would prohibit or forgive
the Issuer or any Guarantor from paying all or any portion of the principal of
or interest on the Notes as contemplated herein or any payments required under
any Security Documents, wherever enacted, now or at any time hereafter in force,
or that may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) each of the Issuer and the Guarantors
hereby expressly waives all benefit or advantage of any such law and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.07. Restricted Payments.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
the Company or any of its Restricted Subsidiaries); (ii) purchase, redeem or
otherwise acquire or retire for value (including, without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company (other
than any such Equity Interests owned by the Company or any Wholly Owned
Restricted Subsidiary of the Company); (iii) make any payment on or with respect
to, or purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes or the Note Guarantees, except a
payment of interest or principal at Stated Maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in the preceding
clauses (i) through (iv) being collectively referred to as "Restricted
Payments"), unless:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) in the case of clauses (i), (ii) and (iii) above, and, in
the case of any Restricted Investment that is not an Investment in a
Permitted Business, the Company
38
would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to
Incur at least $1.00 of additional Indebtedness pursuant to the first
paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries and any Permitted Investments made pursuant to
clause (g) of the definition of Permitted Investments after the date
of this Indenture (excluding Restricted Payments permitted by clauses
(ii), (iii), (iv), (vi) and (vii) of the next succeeding paragraph),
is less than the sum, without duplication, of
(i) the remainder of (A) 100% of the cumulative
Consolidated Cash Flow (or, in the case Consolidated Cash Flow
shall be negative, less 100% of such deficit) for the period
(taken as one accounting period) beginning on the first day of
the fiscal quarter of the Company following the date of this
Indenture and ending on the last day of the last full fiscal
quarter immediately preceding the date of such Restricted
Payment minus (B) the product of 1.5 times the cumulative
Consolidated Interest Expense from the first day of the fiscal
quarter of the Company following the date of this Indenture
through the last day of the last full fiscal quarter
immediately preceding the date of such Restricted Payment,
plus
(ii) 100% of the aggregate net cash proceeds and the
fair market value (as determined in good faith by the Board of
Directors) of property and assets received by the Company
since the date of this Indenture as a contribution to its
common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or
from the issue or sale of Disqualified Stock or debt
securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or Disqualified
Stock or convertible debt securities) sold to a Restricted
Subsidiary of the Company), plus the amount of cash or the
fair market value (as determined above) of property or assets
received by the Company or any Restricted Subsidiary upon such
conversion or exchange, plus
(iii) the aggregate amount equal to (x) dividends,
distributions, interest payments, return of capital,
repayments of Investments or other transfers of assets to the
Company or any Restricted Subsidiary from any Unrestricted
Subsidiary, (y) proceeds realized by the Company or any
Restricted Subsidiary upon the sale of such Investment to a
Person other than GCL, the Company or any Restricted
Subsidiary of the Company, or (z) the redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary, not to
exceed in the case of any of the immediately preceding clauses
(x), (y) or (z) the aggregate amount of Restricted Investments
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary after the date of this Indenture, plus
(iv) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for
cash or otherwise liquidated or repaid for cash,
39
the amount of proceeds (net of any cost of disposition) from
such sale or liquidation.
The foregoing provisions will not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the foregoing
provisions; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Issuer or any Guarantor or
of Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, other Equity Interests of the Company (other than
any Disqualified Stock), provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (c)(ii) of the preceding
paragraph; (iii) the defeasance, redemption, retirement, repurchase or other
acquisition of subordinated Indebtedness of the Issuer or any Guarantor with the
net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness; (iv)
the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its Equity Interests on a pro rata basis; (v) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any of its Restricted Subsidiaries held by any member of the
Company's or such Restricted Subsidiary's management, provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $50.0 million in any twelve-month period (with
unused amounts being carried over to succeed twelve-month periods, subject to a
maximum of $25.0 million in any twelve-month period); (vi) required dividend
payments on the New Preferred Shares at the rate applicable to such shares on
the date of this Indenture; (vii) Investments made with the net cash proceeds
received from an Equity Offering made by the Company (provided that the amount
of any such net cash proceeds that are utilized for any such Investment shall be
excluded from clause (c)(ii) of the preceding paragraph) plus 50% of the net
gain realized and not otherwise included in Consolidated Cash Flow from the sale
of Restricted Investments; [(viii) the payment of any dividend or the making of
any distribution to GCL by the Company or any Restricted Subsidiary to pay or
permit GCL to pay any GCL Expenses or any Related Taxes;] and (ix) other
Restricted Payments in an aggregate amount not to exceed $50.0 million.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company (or such
Restricted Subsidiary, as the case may be) pursuant to the Restricted Payment.
The fair market value of any asset(s) or securities that are required to be
valued by this covenant shall be determined in good faith by the Board of
Directors of the Company (such determination to be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $50.0 million.
SECTION 4.08. Certain Dividend and Other Payment
Restrictions.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) (x) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (A) on its
40
Capital Stock or (B) with respect to any other interest or participation in, or
measured by, its profits, or (y) pay any indebtedness owed to the Company or any
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iii) transfer any of its property or
assets to the Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the provisions of the preceding
paragraph will not apply to encumbrances or restrictions existing under or by
reason of:
(a) Existing Indebtedness as in effect on the date of this
Indenture;
(b) agreements as in effect as of the date of this Indenture;
(c) Indebtedness incurred in accordance with clause (g), (h),
(i), (k), or (n) of the second paragraph of Section 4.09 hereof,
provided that such encumbrances or restrictions are customary with
respect to such types of Indebtedness (as determined in good faith by
the Chief Financial Officer of the Company) and provided further that
the provisions of such Indebtedness do not prohibit payments by the
Company of principal, premium, interest and Additional Amounts pursuant
to the terms of the Notes and this Indenture;
(d) agreements governing the Working Capital Facility or the
security documents related thereto, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements, provided that
encumbrances or restrictions in the Working Capital Facility and such
security documents and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or
refinancings do not affect the Company's or any Guarantor's ability to
make any anticipated principal or interest payments on the Notes or the
ability of the Issuer or any Guarantor to make payments to effect any
redemption or repurchase of the Notes that may be required under this
Indenture or the Notes;
(e) this Indenture, the Notes, the Note Guarantees and the
Security Documents;
(f) applicable law;
(g) any instrument governing Indebtedness or Capital Stock of
a Person acquired by the Company or any of its Restricted Subsidiaries
as in affect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of
such acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired,
provided, that in the case of Indebtedness, such ,Indebtedness was
permitted by the terms of this Indenture to be incurred;
(h) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (iii) above on the property so acquired;
41
(i) customary non-assignment provisions in leases entered into
in the ordinary course of business and consistent with past practices;
(j) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition;
(k) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;
(l) Liens securing Indebtedness otherwise permitted to be
Incurred pursuant to the provisions of Section 4.12 hereof that limit
the right of the Company or any of its Restricted Subsidiaries to
dispose of the assets subject to such Liens;
(m) provisions with respect to the disposition or distribution
of property in joint venture agreements and other similar agreements
entered into in the ordinary course of business; and
(n) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
SECTION 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly Incur any Indebtedness
(including Acquired Debt) and the Company will not issue any Disqualified Stock
and will not permit any of its Restricted Subsidiaries to issue any shares of
Preferred Stock, provided that the Company may Incur Indebtedness or issue
shares of Disqualified Stock and its Restricted Subsidiaries may incur
Indebtedness or issue Disqualified Stock or Preferred Stock if either:
(i) the Company's Consolidated Leverage Ratio is less
than ___ to 1; or
(ii) the Consolidated Capital Ratio is ___.
Notwithstanding the foregoing, the provisions of the preceding
paragraph will not apply to the Incurrence of any of the following items of
Indebtedness:
(a) the Incurrence by the Issuer and any Guarantor of
Indebtedness under the Working Capital Facility in an aggregate
principal amount at any one time outstanding under this clause (a)
(with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) not to exceed $150,000,000;
(b) the Incurrence by the Company and its Restricted
Subsidiaries of Indebtedness in existence on the date of this
Indenture;
42
(c) the Incurrence by the Issuer and the Guarantors of
Indebtedness represented by the Notes to be issued on the date of this
Indenture and the Note Guarantees in connection therewith;
(e) the Incurrence by the Company or any of its Restricted
Subsidiaries of Existing Indebtedness;
(f) the Incurrence of Indebtedness by the Company to any
Restricted Subsidiary or Indebtedness of any Restricted Subsidiary to
the Company or any other Restricted Subsidiary (but only for so long as
such Indebtedness is held by the Company or such Restricted
Subsidiary);
(g) the Incurrence by the Company or any of its Restricted
Subsidiaries of Capital Lease Obligations (other than leases of
backhaul services), mortgage financings or purchase money obligations,
in each case incurred for the purpose of financing all or any part of
the purchase price or cost of construction or improvement of property,
plant or equipment used in the business of the Company or such
Restricted Subsidiary, in an aggregate principal amount not to exceed
$50.0 million at any time outstanding;
(h) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness pursuant to acquisitions of capacity made
in the ordinary course of business;
(i) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness of a Restricted Subsidiary incurred and
outstanding on the date on which such Restricted Subsidiary was
acquired by the Company; provided, however, that at the time such
Restricted Subsidiary is acquired by the Company (giving effect to such
acquisition), the Company would have been able to incur $1.00 of
additional Indebtedness pursuant to the immediately preceding
paragraph;
(j) the Incurrence by the Company or any Restricted Subsidiary
of Purchase Money Indebtedness, provided that the amount of such
Purchase Money Indebtedness does not exceed 100% of the cost of
construction, installation, acquisition, lease, development, design,
engineering, financing, testing, start-up, upgrade, completion or
improvement of assets (together with related costs and expenses) used
in this business of the Company or such Restricted Subsidiary;
(k) the Incurrence by the Company or any of its Restricted
Subsidiaries of revolving credit Indebtedness in an aggregate amount
not to exceed $200.0 million at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (m); and
(l) the guarantee by the Company or any Restricted Subsidiary
of Indebtedness of the Company or any Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this
Section 4.09.
(m) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under Hedging Obligations that is Incurred
for the purpose of fixing or
43
hedging interest or foreign currency exchange rate risk with respect to
any Indebtedness that is permitted by the terms of this Indenture to be
outstanding, or for the purpose of limiting currency exchange rate
risks directly related to transactions entered into by the Company or
such Restricted Subsidiary in the ordinary course of business and not
for speculative purposes;
(n) the Incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness not otherwise permitted to be
Incurred pursuant to this Section 4.09 in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including
all Permitted Refinancing Indebtedness Incurred to refund, refinance or
replace any Indebtedness Incurred pursuant to this clause (p), not
exceeding $50.0 million; and
(o) the Incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be Incurred pursuant to the first paragraph of
this Xxxxxxx 0.00 xx xxxxxxx (x), (x), (x), (x), (x), (x), (x), (x) or
(o) of this paragraph.
The Company will not, and will not permit any of its
Restricted Subsidiaries to incur any Indebtedness (including Permitted
Indebtedness) that is contractually subordinated in right of payment to any
other Indebtedness of the Company or such Restricted Subsidiary unless such
Indebtedness is also contractually subordinated in right of payment to the Notes
on substantially identical terms; provided, however, that no Indebtedness of the
Company shall be deemed to be contractually subordinated in right of payment to
any other Indebtedness of the Company solely by virtue of being unsecured.
SECTION 4.10. Asset Sales.
Except as set forth in the fifth paragraph below, the Company
will not, and will not permit any of its Restricted Subsidiaries to, consummate
an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets or Equity Interests issued
or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board
of Directors and evidenced by a Board Resolution set forth in an
Officers' Certificate delivered to the Trustee; and
(3) at least 70% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash. For
purposes of this provision, each of the following shall be deemed to be
cash:
(A) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet) of the
Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms
subordinated to the Notes or any Guarantee) that are assumed
by the transferee of
44
any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from
further liability; and
(B) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are contemporaneously (subject to
ordinary settlement periods) converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash
received in that conversion).
Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds at its option: :
(1) to repay Senior Debt and, if the Senior Debt repaid is
revolving credit Indebtedness, to correspondingly reduce commitments
with respect thereto;
(2) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire other long-term assets that are used or useful
in a Permitted Business.
Pending the final application of any such Net Proceeds, the
Company may temporarily reduce revolving credit borrowings or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $50.0 million,
within five days thereof, the Company will make an Asset Sale Offer to all
Holders of Notes and all holders of other Indebtedness that is pari passu with
the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets in accordance with Section 3.09 hereof to purchase the maximum principal
amount of Notes and such other pari passu Indebtedness that may be purchased out
of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to
100% of principal amount plus accrued and unpaid interest to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after
consumption of an Asset Sale Offer, the Company may use such Excess Proceeds for
any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and such other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a pro
rata basis based on the principal amount of Notes and such other pari passu
Indebtedness tendered Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
Notwithstanding the first four paragraphs of this Section
4.10, upon any sale of GCUK or Global Marine by the Company or any of its
Subsidiaries, (i) the Company (or such Subsidiary, as the case may be) shall
ensure that the consideration received at the time of such
45
sale is at least equal to the fair market value (as determined in good faith by
the Board of Directors of the Company (including as to the value of all non-cash
consideration) and set forth in an Officers' Certificate delivered to the
Trustee) of the property or Equity Interests issued or sold or otherwise
disposed of, (ii) at least 70% of the consideration therefor shall be in the
form of cash and/or Cash Equivalents and (iii) such Net Proceeds shall be
applied in accordance with Section 3.09 hereof.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
Sections 3.09 or 4.10 of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under those provisions of this Indenture by virtue of
such conflict.
SECTION 4.11. Transactions with Affiliates.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (a) such Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (b) the Company delivers to
the Trustee (x) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration of less than $50.0
million, a resolution of the Board of Directors of the Company set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
the preceding clause (a) and that such Affiliate Transaction has been approved
by a majority of the disinterested members of such Board of Directors, and (y)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $50.0 million, an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view from an accounting, appraisal or investment banking firm
of recognized national standing.
Notwithstanding the foregoing, the following items shall not
be deemed to be Affiliate Transactions:
(a) the receipt by any Affiliate who is an individual serving
as a director, officer or employee of the Company or any of its
Restricted Subsidiaries of reasonable compensation for his or her
services in such capacity;
(b) transactions between or among the Company and its
Restricted Subsidiaries;
(c) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company;
46
(d) any transaction entered into in the ordinary course of
business between the Company or any Restricted Subsidiary and any
Unrestricted Subsidiary or any Affiliate (provided that in the case of
this clause (d), such agreements are on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that could have been obtained at the time of such transaction in
an arm's-length transaction with an unrelated third party);
(e) (i) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan,
program or arrangement, related trust agreement or any other similar
arrangement for or with any employee, officer or director heretofore or
hereafter entered into in the ordinary course of business, including
vacation, health, insurance, deferred compensation, retirement, savings
or other similar plans, (ii) the payment of compensation, performance
of indemnification or contribution obligations, or an issuance, grant
or award of stock, options, or other equity-related interests or other
securities to employees, officers or directors in the ordinary course
of business, (iii) any transaction with an officer or director in the
ordinary course of business not involving more than $250,000 in any one
case, or (iv) Management Advances and payments in respect thereof;
(f) transactions between or among the Company and/or its
Restricted Subsidiaries;
(g) Affiliate Transactions in effect or approved by the Board
of Directors on the date of this Indenture, including any amendments
thereto (provided that the terms of such amendments are not materially
less favorable to the Company or the relevant Restricted Subsidiary
than the terms of such agreement prior to such amendment), (i)
transactions with respect to capacity or dark fiber between the Company
or any Restricted Subsidiary and any Unrestricted Subsidiary or other
Affiliate and joint sales and marketing pursuant to an agreement or
agreements between the Company or any Restricted Subsidiary and any
Unrestricted Subsidiary or other Affiliate (provided that in the case
of this clause (i), such agreements are on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that could have been obtained at the time of such transaction in
an arm's-length transaction with an unrelated third party or, in the
case of a transaction with an Unrestricted Subsidiary, are either (x)
entered into in connection with a transaction involving the selection
by a customer of cable system capacity entered into in the ordinary
course of business or (y) involve the provision by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary of sales and
marketing services, operations, administration and maintenance services
or development services for which the Company or such Restricted
Subsidiary receives a fair rate of return (as determined by the Board
of Directors and set forth in an Officers Certificate delivered to the
Trustee) above its expenses of providing such services;
(h) were AGC and PCL to be deemed affiliates during their
pending insolvency proceedings, any transactions between the Company
and or a Restricted Subsidiary and AGC and PCL during such proceedings;
and
(i) Restricted Payments that are permitted by Section 4.07
hereof.
47
SECTION 4.12. Liens.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien of any kind (other than Permitted Liens)
upon any of their property or assets, now owned or hereafter acquired, unless
all payments due under this Indenture, the Notes and the Guarantees are secured
on an equal and ratable basis with the obligations so secured until such time as
such obligations are not longer secured by a Lien.
SECTION 4.13. Sale and Leaseback Transactions.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction,
provided that any Debtor Party may enter into a sale and leaseback transaction
if (a) such Debtor Party could have (i) Incurred Indebtedness under Section 4.09
hereof in an amount equal to the Attributable Debt relating to such sale and
leaseback transaction and (ii) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12 hereof, (b) the gross cash proceeds of such sale and
leaseback transaction are at least equal to the fair market value (as determined
in good faith by the Board of Directors of the Company and set forth in an
Officers' Certificate delivered to the Trustee) of the property that is the
subject of such sale and leaseback transaction and (c) the transfer of assets in
such sale and leaseback transaction is treated as an Asset Sale, and the Company
applies the proceeds of such transaction in compliance with, Section 4.10
hereof.
SECTION 4.14. Offer to Repurchase Upon Change of Control.
(a) Change of Control Offer. Upon the occurrence of a Change
of Control, each Holder of Notes will have the right to require the Issuer to
purchase all or any part of such Holder's Notes pursuant to the offer described
below (the "Change of Control Offer") at a purchase price in cash (the "Change
of Control Payment") equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), provided that the
Issuer shall not be obligated to repurchase Notes pursuant to this covenant in
the event that it has exercised its rights to redeem all of the Notes as
described in Section 3.07 hereof. Within 30 days following any Change of
Control, the Issuer will mail a notice to each Holder describing the transaction
or transactions that constitute the Change of Control and offering to purchase
Notes on the date specified in such notice, which date shall be no earlier than
30 and no later than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"), in accordance with the procedures required by this
Indenture and described in such notice. The Issuer will comply with the
requirements of Rule 14e-l under the Exchange Act and any other securities laws
and regulations to the extent such laws and regulations are applicable in
connection with the purchase of Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
any of the provisions of this Section 4.14, the Issuer will comply with the
applicable securities laws and regulations and will be deemed not to have
breached its obligations under this covenant by virtue thereof.
48
(b) Change of Control Payment Date. On the Change of Control
Payment Date, the Issuer will, to the extent lawful, (l) accept for payment all
Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered and (3)
deliver or cause to be delivered to the Trustee Notes so accepted together with
an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Issuer. The Paying Agent will promptly
mail or deliver to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee will promptly authenticate and mail or
deliver (or cause to be transferred by book entry) to each Holder a new Note
equal in principal amount to any unpurchased portion of Notes surrendered, if
any. The Issuer will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.
(c) Offers by Third Parties. Notwithstanding anything to the
contrary in this Section 4.14, the Issuer shall not be required to make a Change
of Control Offer upon the occurrence of a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 4.14, and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.15. Guarantee Supplements.
If any Restricted Subsidiary guarantees any Debt Securities
issued by the Company, then (i) the Company shall promptly notify the Trustee of
such guarantee, (ii) the Trustee shall, in turn, notify each Holder and (iii)
the Company shall cause this Indenture to be amended to make such Restricted
Subsidiary a Guarantor hereunder. Prior to the execution of such amendment, each
such Restricted Subsidiary required to become a Guarantor pursuant to the
provisions of this Section 4.15 shall be deemed a Guarantor for purposes of
determining the rights and obligations hereunder.
SECTION 4.16. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture, the Notes or any of the Security Documents unless such
consideration is offered to be paid or is paid to all Holders that consent,
waive or agree to amend such terms or provisions of this Indenture, the Notes or
the Security Documents in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
SECTION 4.17 Designation of Restricted and Unrestricted
Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if that designation would not cause a Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary properly
49
designated will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
the first paragraph of the covenant described above under Section 4.07 or
Permitted Investments, as determined by the Company. That designation will only
be permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default.
ARTICLE V CONSOLIDATION, MERGER AND SALE OF ASSETS
SECTION 5.01. Merger, Consolidation, or Sale of Assets.
The Company will not, directly or indirectly, consolidate or
merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of the property or assets of the Company in one or more related transactions, to
another Person unless: (a) the Company is the surviving corporation or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia,
Bermuda or any country in the European Union; (b) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, conveyance or other disposition
shall have been made assumes all the obligations of the Company under its Note
Guarantee, this Indenture and the Security Documents pursuant to agreements in
form and substance satisfactory to the Trustee; (c) immediately after such
transaction no Default or Event of Default exists; and (d) except in the case of
a merger of the Company with or into a Restricted Subsidiary of the Company, the
Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made (a) will, immediately after
such transaction and after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the first paragraph of Section 4.09 hereof
or (b) would, together with its Restricted Subsidiaries, have a higher
Consolidated Leverage Ratio immediately after that transaction (after giving pro
forma effect thereto as if that transaction had occurred at the beginning of the
applicable four-quarter period) than the Consolidated Leverage Ratio of the
Company and its Restricted Subsidiaries immediately prior to that transaction.
The Company will not, directly or indirectly, lease all or substantially all of
its property or assets, in one or more related transactions, to any other
Person. The provisions of this Section 5.01 will not be applicable to a sale,
assignment, transfer, conveyance or other disposition of property between or
among the Company and the Guarantors.
SECTION 5.02. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition described in Section 5.01
hereof, the successor entity formed by such consolidation or into or with which
the Company is merged or to which such sale,
50
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture and the Security Documents referring to the Company
shall refer instead to the successor entity and not to the Company), and may
exercise every right and power of the Company under this Indenture and the
Security Documents with the same effect as if such successor Person had been
named as the Company herein and therein, provided that the predecessor Company
shall not be relieved from its obligations in respect of the Notes or the Note
Guarantee, as applicable, except in the case of a sale of all of the Company's
and its Subsidiaries' property that meets the requirements of Section 5.01
hereof.
ARTICLE VI SECURITY DOCUMENTS
SECTION 6.01. Collateral and Security Documents.
(a) Execution of Security Documents. On the Issue Date, the
Debtor Parties and the Trustee will enter into one or more security agreements,
pledge agreements, assignments, mortgages or other similar instruments or
documents as shall be necessary in order that the Trustee shall enjoy, for the
benefit of the Trustee and the Holders, a lien and security interest on all of
the property of the Debtor Parties described in the definition of "Collateral"
in Section 1.01 hereof, now existing or hereafter arising, and wherever located.
Concurrently with the execution and delivery of the agreements, assignments,
mortgages and other instruments or documents referred to above, the Debtor
Parties will furnish to the Trustee the Opinions of Counsel and other documents
and instruments referred to in Section 6.02(c) hereof.
The Trustee and the Debtor Parties hereby acknowledge and
agree that the Trustee holds the Collateral in trust for the benefit of the
Trustee and the Holders, in each case pursuant to the terms of this Indenture
and the Security Documents and the Debtor Parties, pursuant to this Indenture as
well as the Security Documents, hereby grant to the Trustee for the ratable
benefit of the Holders a security interest in the Collateral. Each Holder, by
accepting a Note, shall be deemed to have agreed to all the terms and provisions
of the Security Documents.
(b) Equal and Ratable Lien. As among the Holders, the
Collateral shall be held for the equal and ratable benefit of the Holders
without preference, priority or distinction of any thereof over any other.
(c) Use of Collateral. In the absence of an Event of Default,
and subject to the provisions of this Indenture and the applicable Security
Documents, the Debtor Parties shall be suffered and permitted to possess,
charter, lease, use, manage, operate and enjoy the Collateral (other than any
cash or Cash Equivalents for any payment on or redemption or purchase of any
Notes).
(d) Authorization to Trustee. The Trustee is hereby authorized
and directed to enter into each of the Security Documents contemplated hereby
and to perform all of the obligations of the Trustee thereunder.
51
SECTION 6.02. Maintenance of Security Interests.
(a) Maintenance and Preservation of Liens. The Debtor Parties
will take or cause to be taken all action required to maintain, preserve and
protect the Liens on the Collateral granted by this Indenture and the Security
Documents, including causing any Security Document, instruments of further
assurance and all amendments or supplements thereto, to be promptly recorded,
registered and filed and at all times to be kept recorded, registered and filed,
and will execute and file statements and cause to be issued and filed
statements, all in such manner and in such places and at such times as are
prescribed in the Security Documents or in this Indenture and as may be required
by law fully to preserve and protect the rights of the Holders and the Trustee
under this Indenture and the Security Documents to the Collateral.
Without limiting the generality of the foregoing, if after the
Issue Date the Company or any of its Subsidiaries shall create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind upon
any of its property securing the Working Capital Facility, the Company shall, or
shall cause its Subsidiary to, as the case may be, (i) execute and file, as
applicable, any and all further Security Documents and other instruments
required under applicable law, upon substantially the same terms as the security
documents securing the Working Capital Facility, as shall be necessary to
effectuate a second-priority Lien upon such property for the benefit of the
Holders, unless such second-priority Lien cannot be effectuated under applicable
law and (ii) deliver an Opinion of Counsel reasonably satisfactory to the
Trustee that such Security Documents are valid, binding and enforceable
obligations, it being understood that in no event will the Working Capital
Facility be entitled to the benefit of any Liens on the assets of, or Equity
Interests in, GCUK, Global Marine or their respective Subsidiaries.
(b) Recording and Filing Fees. The Debtor Parties will, from
time to time promptly pay and discharge all recording or filing fees, charges
and taxes relating to the filing or registration of this Indenture and the
Security Documents, any amendments thereto and any other instruments of further
assurance.
(c) Confirmatory Action Regarding Liens. The Debtor Parties
will furnish to the Trustee:
(i) as a condition precedent to the execution and delivery by
the Trustee on the Issue Date of this Indenture and the Security
Documents, Opinions of Counsel in New York and applicable foreign
jurisdictions as to (1) the validity, enforceability, priority and
perfection of the security interests granted to the Trustee under the
Security Documents, (2) the due organization of the Issuer and the
Guarantors, (3) the due authorization, execution and enforceability of
this Indenture and the Security Documents and (4) such other matters as
the Trustee may reasonably request;
(ii) promptly after the execution and delivery of this
Indenture, the Security Documents, each amendment or supplement to a
Security Document or other instrument of further assurance, an Opinion
or Opinions of Counsel stating that, in the opinion of such counsels,
this Indenture, the Security Documents, any such amendment or
supplement to a Security Document and other instruments of further
assurance have been
52
properly recorded, endorsed, registered and filed, or have been
received for record, filing or registration, to the extent necessary to
make effective and perfect the Liens intended to be created by this
Indenture and the Security Documents and reciting the details of such
action or referring to prior Opinions of Counsel in which such details
are given, or stating that, in the opinion of such counsel, no such
action is necessary to make such Liens effective;
(iii) on or before January 1 in each year beginning with
January 1, 2004, an Opinion or Opinions of Counsel, dated as of such
date, (A) either stating that, in the opinion of such counsels, such
action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and re-filing of this Indenture,
the Security Documents, of all amendments or supplements to the
Security Documents, financing statements, continuation statements or
other instruments of further assurances as is necessary to maintain the
Lien of this Indenture and the Security Documents (including the Lien
on any property acquired by the Issuer or any Guarantor since the end
of the preceding calendar year) and reciting the details of such action
or referring to prior Opinions of Counsel in which such details are
given, or stating that, in the opinion of such counsel, no such action
is necessary to maintain such Lien and (B) stating that all fees
required to be paid under each Security Document have been paid; and
(iv) from time to time, notice of any recording, registration,
filing, payment or other action taken in accordance with the provisions
of Section 6.02(a) hereof, in each case as promptly as practicable
after taking any such action.
(d) Insurance. The Company will cause all casualty insurance
maintained by the Company or any of the other Debtor Parties with respect to any
of the Collateral to designate the Trustee as the loss payee thereof, as its
interests may be, and shall provide copies of any such policies (showing such
designation) to the Trustee on the Issue Date and annually thereafter on each
January 1, beginning with January 1, 2004, shall deliver an Officers'
Certificate, together with copies of appropriate endorsements, showing that such
designation continues to in effect.
(e) Amendments to Security Documents. The Company will not,
and will not permit any Subsidiary to, take or omit to take any action which
action or omission might or would have the result of impairing the security
interest with respect to the Collateral for the benefit of the Trustee and the
Holders, and the Company shall not, and shall not permit any Subsidiary to,
grant to any Person other than the Trustee, for the benefit of the Trustee and
the Holders, any interest whatsoever in any of the Collateral, except as
expressly permitted under this Indenture and the Security Documents, provided
that nothing herein shall be deemed to prohibit any amendment, modification or
supplement of this Indenture or any Security Document (i) in order to effectuate
the subordination of the Lien of the Security Documents to any Lien securing the
Working Capital Facility as contemplated by Section 6.03 hereof or (ii) in
connection with the release by the Trustee of any Lien upon any property of the
Company or any Subsidiary that are the subject of a sale or other disposition
(including any Asset Sale) permitted hereunder, to the extent such release is
required pursuant to Section 6.04 hereof.
53
SECTION 6.03. Subordination to Working Capital Facility.
The Liens created pursuant to the Security Documents shall be
subject to no other Lien other than (a) in the case of any Collateral, Permitted
Liens referred to in clauses (e), (h) or (k) of the definition of such term in
Section 1.01 hereof and (b) in the case of the Senior Collateral, Liens securing
the obligations of the Debtor Parties under and in respect of the Working
Capital Facility. In the event that the Company shall at any time Incur
Indebtedness in respect of the Working Capital Facility and such Indebtedness
shall be secured by any of the property of the Company or any of its
Subsidiaries, the Trustee shall, upon receipt of an Issuer Order to such effect,
execute and deliver an Intercreditor Agreement in substantially the form of
Exhibit C hereto, together with such other documents and instruments as shall be
necessary to effect the subordination of the Liens of the Security Documents to
the Liens securing the Working Capital Facility, insofar as relating to the
Senior Collateral, in each case to the extent set forth in an Issuer Order and
an Opinion of Counsel.
SECTION 6.04. Release of Liens.
(a) Release Upon Disposition. So long as no Default or Event
of Default has occurred and is continuing, upon any Asset Sale in compliance
with the provisions of this Indenture and the Security Documents (including the
provisions of Section 3.09 and 4.10 hereof), Collateral which was the subject of
such a sale or other disposition shall be released from the Lien and security
created by this Indenture and the Security Documents in accordance with the
provisions of this Indenture, the Security Documents and the Trust Indenture
Act.
In addition, so long as no Default or Event of Default has
occurred and is continuing, upon any Asset Sale that results in any Guarantor no
longer being a Subsidiary of the Company, such Guarantor shall be released from
its obligations under its Note Guarantee and from the Lien and security created
by this Indenture and the Security Documents in accordance with the provisions
of this Indenture, the Security Documents and the Trust Indenture Act.
(b) Execution by Trustee of Releases. Upon the request of the
Company and pursuant to an Officers' Certificate and an Opinion of Counsel (to
be provided at the sole cost and expense of the Company) certifying that all
conditions precedent hereunder to any Asset Sale have been met and setting forth
the aggregate amount of the Net Cash Proceeds to be received upon such Asset
Sale, then upon the satisfaction of such conditions precedent hereunder, the
Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release reasonably required to
effect the release of any Collateral and, if applicable, any Note Guarantee as
provided in paragraph (a) above.
(c) No Impairment of Continuing Security. The release of any
Collateral from the Lien of this Indenture and the Security Documents will not
be deemed to impair the security under this Indenture in contravention of the
provisions hereof, if and to the extent Collateral is released pursuant to the
terms hereof and of the Security Documents. To the extent applicable, the Issuer
and any Guarantor shall cause Section 314(d) of the Trust Indenture Act relating
to the release of property from the Lien of the Security Documents to be
complied with. Any certificate or opinion required by Section 314(d) of the
Trust Indenture Act may be made by any Officer of the Company, provided that, to
the extent required by Section 314(d) of the Trust
54
Indenture Act, any such certificate or opinion shall be made by an "independent
appraiser" or other "expert" (as such terms are set forth in Section 314(d) of
the Trust Indenture Act).
ARTICLE VII DEFAULT AND REMEDIES
SECTION 7.01. Events of Default.
The following events shall, so long as the same shall have
occurred and be continuing, constitute "Events of Default" hereunder:
(a) default for 30 days in the payment when due of interest on
the Notes;
(b) default in the payment when due of the principal of the
Notes;
(c) failure by the Company or any of its Restricted
Subsidiaries to comply with Sections 4.07, 4.09, 4.10 or 4.14 for 30
days after notice;
(d) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to comply with any of its other
agreements in this Indenture or any of the Security Documents;
(e) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, which default permits the holder or holders of such
Indebtedness (or any agent or trustee on their behalf) to immediately
declare such Indebtedness to be due and payable (without any notice,
other than demand for payment, or lapse of time) to the extent that the
aggregate amount of such Indebtedness in respect of such defaults
occurs is $50.0 million or more;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments not subject to appeal aggregating
in excess of $50.0 million or more (net of applicable insurance
coverage which is acknowledged in writing by the insurer), which
judgments are not paid, discharged or stayed for a period of 60 days;
(g) except as provided by this Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Note Guarantee;
(h) the Company or any of its Restricted Subsidiaries pursuant
to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
55
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due;
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries,
(ii) appoints a custodian of the Company or any of its Restricted
Subsidiaries or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries; or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries; and the order or decree remains unstayed and in effect
for 60 days; or
(j) Any of the following shall occur: (i) the Liens created by
the Security Documents shall at any time, with respect to any material
portion of the property of the Debtor Parties taken as a whole, not
constitute valid and perfected Liens on the Collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of
the Trustee for the benefit of the Holders hereunder, free and clear of
all other Liens (other than Liens permitted under Section 4.12 hereof
or under the respective Security Documents); (ii) except for expiration
in accordance with its terms, any of the Security Documents shall for
whatever reason be terminated, or shall cease to be in full force and
effect, with respect to any material portion of the property of the
Debtor Parties taken as a whole; or (iii) any Liens created thereunder
shall be declared invalid or unenforceable or any Debtor Party shall
assert, in any pleading in any court of competent jurisdiction, that
any such security interest is invalid or unenforceable.
SECTION 7.02. Acceleration.
If any Event of Default with respect to outstanding Notes
occurs and is continuing, the Trustee or the Holders of a majority in aggregate
principal amount of the then-outstanding Notes may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, if an Event of
Default specified in paragraph (i) or (j) of Section 7.01 hereof with respect to
outstanding Notes occurs with respect to any Debtor Party, all outstanding Notes
shall be due and payable immediately without further action or notice. The
Holders of a majority in aggregate principal amount of the then-outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal or interest that has become due solely because
of the acceleration) have been cured or waived.
56
SECTION 7.03. Other Remedies.
If an Event of Default with respect to outstanding Notes
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal and interest, if any, on the Notes or to enforce the
performance of any provision of the Notes, this Indenture or the Security
Documents.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 7.04. Waiver of Past Defaults.
Subject to Sections 7.02, 7.07 and 10.02 hereof, Holders of
not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of the principal
of and interest on the Notes (including in connection with a required redemption
or an offer to purchase). 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 7.05. Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
SECTION 7.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture to the extent it relates to the Notes, this Indenture or the Security
Documents only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default or the Trustee shall have distributed
notice of an Event of Default to Holders in accordance with the
provisions of this Indenture;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
57
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 7.07. Rights of Holders of Notes to Receive
Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of and interest on
such Note on or after the respective due dates expressed in such Note (including
in connection with an offer to purchase), or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default specified in Section 7.01(a) or (b)
hereof occurs and is continuing with respect to the Notes, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Issuer and the Guarantors for the whole amount of principal of
and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and 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.
SECTION 7.09. Trustee May Files Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Issuer or any
Guarantor (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to participate as a member, voting or
otherwise, of any official committee of creditors appointed in such matter and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be paid out of any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of
58
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 7.10. Priorities.
If the Trustee collects any money with respect to any Notes
pursuant to this Article VII, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 8.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal and interest, respectively; and
Third: to the Debtor Parties or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 7.10.
SECTION 7.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 7.06 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE VIII TRUSTEE
SECTION 8.01. General.
The duties and responsibilities of the Trustee shall be as
provided by the TIA and as specifically set forth herein, and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
Notwithstanding the foregoing, 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. If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this
59
Indenture and the Security Documents and use the same degree of care and skill
in such exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs. 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 Article VIII.
SECTION 8.02. Certain Rights of Trustee; Reliance on
Certificate.
(a) Reliance by Trustee. Subject to Sections 315(a) through
(d) of the TIA:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper person (and the
Trustee need not investigate any fact or matter stated in such
document);
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 13.04 hereof (and the Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on
such certificate or opinion);
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care;
(iv) 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, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to
the Trustee against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not
constitute gross negligence or willful misconduct;
(vi) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or involving the exercise of any right, duty,
trust or power conferred upon the Trustee under the TIA or this
Indenture; and
(vii) the Trustee shall not be charged with knowledge of (A)
any Default or Event of Default, (B) the identity of any Subsidiary or
(C) of the existence of any Change of Control or Asset Sale, unless
either (i) a Responsible Officer shall have actual knowledge thereof,
or (ii) the Trustee shall have received written notice thereof from the
Issuer or any Holder.
(b) Instructions by Beneficial Owners of Notes.
Notwithstanding the provisions of the foregoing paragraph (a), the Trustee, in
receiving instructions of Holders, shall
60
be entitled to rely and shall follow the instruction of any Person that it
reasonably believes to be a Beneficial Owner of Notes, provided that such
instruction is accompanied by (i) an officer's certificate of such Beneficial
Owner, stating the outstanding principal amount of Notes beneficially held by
it, and (ii) an indemnity agreement (if such indemnity is otherwise required
under the provisions of this Indenture) in form reasonably satisfactory to the
Trustee, executed by such Person agreeing to indemnify the Trustee against
claims, damages and losses incurred in reliance on said officer's certificate.
SECTION 8.03. May Hold Notes.
The Trustee, any Paying Agent, Registrar or any other agent of
the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Notes and may make loans to, accept deposits from, perform services
for, and otherwise deal with the Issuer or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 310(b) and 311 of the TIA.
SECTION 8.04. Trustee's Disclaimer.
The Trustee (a) makes no representation as to the validity or
adequacy of this Indenture, the Security Documents or the Notes and (b) shall
not be responsible for any statement in the Notes other than its certificate of
authentication.
SECTION 8.05. Notice of Default.
If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is known to the Trustee, the
Trustee shall mail to each Holder in the manner and to the extent provided in
Section 313(c) of the TIA notice of the Default or Event of Default within 90
days after the same shall occur and become known to the Trustee, unless such
Default or Event of Default has been cured, provided that, except in the case of
a default in the payment of the principal of or interest on any Note, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with the May 15
following the date of this Indenture, the Trustee shall mail to each Holder as
provided in Section 313(c) of the TIA a brief report, dated as of such May 15,
if required by Section 313(a) of the TIA. The Trustee shall also comply with TIA
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange (if any) on which the
Notes are listed. The Issuer agrees to promptly notify the Trustee whenever the
Notes become listed on any stock exchange and of any delisting thereof.
61
SECTION 8.07. Compensation and Indemnity.
(a) Compensation. The Issuer shall pay to the Trustee such
compensation as shall be agreed upon in writing for its services. The
compensation of the Trustee shall not limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable expenses, disbursements and advances incurred or made by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
(b) Indemnification. Subject to Sections 3.15(a) through (d)
of the TIA, the Issuer shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part arising out of or in connection with the execution,
acceptance or administration of this Indenture and its duties under this
Indenture, the Notes and the Security Documents, including the costs and
expenses of defending itself against any claim or liability and of complying
with any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture, the
Notes and the Security Documents.
(c) Lien of Trustee. To secure the Issuer's payment
obligations in this Section 8.07, the Trustee shall have a lien prior to the
Notes on all money or other property held or collected by the Trustee, in its
capacity as Trustee, except money or other property held in trust to pay
principal of and interest on particular Notes.
(d) Expenses During Bankruptcy. If the Trustee incurs expenses
or renders services after the occurrence of an Event of Default specified in
Section 7.01(h) or (i) hereof, the expenses and the compensation for the
services shall be intended to constitute expenses of administration under the
United States Bankruptcy Code or any applicable federal or state law for the
relief of debtors.
(e) Survival. The provisions of this Section 8.07 shall
survive the resignation or removal of the Trustee and the termination of this
Indenture or the Security Documents.
SECTION 8.08. Replacement of Trustee.
(a) Effectiveness of Resignation or Removal. A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 8.08.
(b) Resignation and Removal. The Trustee may resign by so
notifying the Issuer in writing at least 30 days prior to the date of the
proposed resignation. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by so notifying the Trustee in writing
and may appoint a successor Trustee with the consent of the Issuer. The Issuer
may remove the Trustee if:
(i) the Trustee fails to comply with Section 8.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
62
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) Appointment of Successor. If the Trustee resigns or is
removed, or if a vacancy exists in the office of Trustee for any reason, the
Issuer shall promptly appoint a successor Trustee. If the successor Trustee does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuer or the Holders of a majority in principal
amount of the outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(d) Acceptance by Successor. A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the
Issuer. Immediately after the delivery of such written acceptance, subject to
the lien provided in Section 8.07 hereof, (i) the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee shall become effective and (iii)
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
(e) Removal by Court. If the Trustee fails to comply with
Section 8.10 hereof, any Holder who satisfies the requirements of Section 310(b)
of the TIA may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(f) Rights of Retiring Trustee. Notwithstanding replacement
of the Trustee pursuant to this Section 8.08, the Issuer's obligation under
Section 8.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee with the same effect as if the
successor Trustee had been named as the Trustee herein.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1)(2) and(5) of the TIA. The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee and the Issuer shall
comply with Section 310(b) of the TIA, provided that there shall be excluded
from the operation of Section 310(b)(1) of the TIA any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the TIA are met, provided that
nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
TIA.
63
SECTION 8.11. Money Held in Trust.
The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuer. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 8.12. Withholding Taxes.
The Trustee, as Paying Agent for the Issuer, shall exclude and
withhold from each payment of principal and interest and other amounts due
hereunder or under the Notes any and all withholding taxes applicable thereto to
the extent that the Trustee has been specifically instructed by the Issuer that
stated amounts for taxes should be withheld, pursuant to the Issuer's
obligations as contemplated by Section 3.08 hereof. The Trustee agrees to act as
such withholding agent and, in connection therewith, whenever it has been so
instructed that any present or future taxes or similar charges are required to
be withheld with respect to any amounts payable in respect of the Notes, (i)
shall withhold such amounts and timely pay the same to the appropriate authority
in the name of and on behalf of the Holders, (ii) shall file in a timely manner
any necessary withholding tax returns or statements that it is required to file
by law, and (iii) as promptly as possible after the payment thereof, it shall
deliver to each Holder such documentation (if any) as it may be required by law
to deliver, showing the payment thereof.
SECTION 8.13. Preferential Collection of Claims Against
the Issuer.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated therein.
ARTICLE IX LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.01 Option to Effect Legal Defeasance or
Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 9.02 or 9.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article IX.
SECTION 9.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 9.01 hereof of the
option applicable to this Section 9.02, the Company and each of the Guarantors
will, subject to the satisfaction of the conditions set forth in Section 9.04
hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Notes (including the Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 9.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2)
64
below, and to have satisfied all their other obligations under such Notes, the
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which will survive until otherwise terminated or
discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium, if
any, on such Notes when such payments are due from the trust referred
to in Section 9.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article II and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith; and
(4) this Article IX.
Subject to compliance with this Article IX, the Company may
exercise its option under this Section 9.02 notwithstanding the prior exercise
of its option under Section 9.03 hereof.
SECTION 9.03 Covenant Defeasance.
Upon the Company's exercise under Section 9.01 hereof of the
option applicable to this Section 9.03, the Company and the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 9.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17
hereof and Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 9.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes will thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such Notes will not be
deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Guarantees, the
Company and the Guarantors may omit to comply with and will have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply will
not constitute a Default or an Event of Default under Section 7.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and
Guarantees will be unaffected thereby. In addition, upon the Company's exercise
under Section 9.01 hereof of the option applicable to this Section 9.03 hereof,
subject to the satisfaction of the conditions set forth in Section 9.04 hereof,
Sections 7.01(c) through 7.01(e) hereof will not constitute Events of Default.
65
SECTION 9.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance under either Section 9.02 or 9.03 hereof:
(1) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, cash in United States
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date,
as the case may be;
(2) in the case of an election under Section 9.02 hereof, the
Company has delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that:
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has been
a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of an election under Section 9.03 hereof, the
Company must deliver to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
66
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
SECTION 9.05 Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions.
Subject to Section 9.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
9.05, the "Trustee") pursuant to Section 9.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company will pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 9.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article IX to the contrary,
the Trustee will deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 9.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 9.04(1) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 9.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Note will thereafter be
permitted to look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee
67
thereof, will thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 9.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
9.02 or 9.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and the Guarantor's obligations
under this Indenture and the Notes and the Guarantees will be revived and
reinstated as though no deposit had occurred pursuant to Section 9.02 or 9.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 9.02 or 9.03 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE X AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Debtor Parties, when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture, the Notes or the Security
Documents without notice to or the consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency
in this Indenture or any Security Document, provided that such
amendments or supplements shall not, as evidenced by an Opinion of
Counsel, adversely affect the interests of the Holders in any material
respect;
(ii) to comply with Article V hereof;
(iii) through the execution and delivery one or more Guarantee
Supplements;
(iv) to provide additional security for the Notes;
(v) to add to the covenants of the Debtor Parties for the
benefit of the Holders or to surrender any right or power conferred
upon the Debtor Parties;
(vi) to make any change that does not, as evidenced by an
Opinion of Counsel, adversely affect the rights of any Holder of the
Notes;
(vii) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
68
(viii) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee in accordance with the
terms of this Indenture; or
(ix) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture or the Security
Documents, or to subject additional property to the Lien of this
Indenture or the Security Documents.
After an amendment, supplement or waiver under this Section
10.01 becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Issuer shall
mail copies of any such amendment, supplement or waiver to Holders upon request.
Any failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 10.02. Consent of Holders.
(a) Consent by Majority Holders. Without prior notice to the
Holders, the Debtor Parties, when authorized by their respective Board of
Directors (as evidenced by a Board Resolution), and the Trustee may amend this
Indenture, the Notes or the Security Documents with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding, and the Holders of at least a majority of the principal amount
of the Notes then outstanding by written notice to the Trustee may waive future
compliance by any Debtor Party with any provision of this Indenture, the Notes
or the Security Documents, provided that the Holders of at least 85% in
aggregate principal amount of the Notes then outstanding shall be required to
release any substantial portion of Collateral from the Lien of the Security
Documents.
(b) Consent by Each Holder. Notwithstanding the provisions of
paragraph (a) of this Section 10.02, without the consent of each Holder
affected, an amendment or waiver, including a waiver pursuant to Section 7.04
hereof, may not:
(i) reduce the amount of Notes whose Holders must consent to
an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal of or extend the Stated Maturity of
any Note;
(iv) change any place of payment where, or the currency in
which, any Note or the interest thereon is payable;
(v) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes;
(vi) make any change in the amendment provisions or in the
waiver provisions of this Indenture (including, without limitation, the
provisions of this Article X and
69
Section 7.02 hereof) which require the consent of Holders of all or a
specified percentage in principal amount of outstanding Notes;
(vii) change the time at which any Note may be redeemed
pursuant to Article III hereof; or
(viii) amend the provisions of Section 3.09, 4.10 or 4.14
hereof.
(c) Form of Consents. It shall not be necessary for the
consent of the Holders under this Section 10.02 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
(d) Notice of Amendment. After an amendment, supplement or
waiver under this Section 10.02 becomes effective, the Issuer shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. The Issuer shall mail copies of any such amendment, supplement or
waiver to Holders upon request. Any failure of the Issuer to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
SECTION 10.03. Revocation and Effect of Consent.
(a) Notice of Revocation. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
(b) Record Dates. The Issuer may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last two sentences of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
SECTION 10.04. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Note thereafter authenticated. Alternatively, if the Issuer or the Trustee
so determines, the Issuer in exchange for a Note shall issue, and the Trustee
shall authenticate, a new Note that reflects the changed terms.
70
SECTION 10.05. Trustee to Sign Amendments, Etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel (at
the cost and expense of the Issuer) meeting the requirements of Section 13.04
hereof and stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article X is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 10.06. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
X shall conform to the requirements of the TIA as then in effect.
SECTION 10.07. Amendments to Security Documents.
Except as otherwise provided in Sections 10.01 and 10.02
hereof, the Debtor Parties shall not amend, modify or supplement, or permit or
consent to any amendment, modification or supplement of, this Indenture, the
Notes or the Security Documents.
ARTICLE XI NOTE GUARANTEE
SECTION 11.01. Note Guarantee.
Subject to this Article XI, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes, the Security Documents or the obligations of the Issuer
hereunder or thereunder, that: (a) the principal of and interest on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes 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, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The obligations of the Guarantors under this Article XI are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Issuer under this Indenture, the Notes or the Security Documents, or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other
71
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Article XI that the obligations of the Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantors hereunder, which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Indenture, the Notes or the Security Documents, or any other
agreement or instrument referred to herein or therein shall be done or
omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Indenture, the Notes or the Security Documents, or any other agreement
or instrument referred to herein or therein, shall be waived or any
other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Trustee as security for any of the Guaranteed Obligations
(including pursuant to any of the Security Documents) shall fail to be
perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Trustee or any
Holder exhaust any right, power or remedy or proceed against the Issuer under
this Indenture, the Notes or the Security Documents, or any other agreement or
instrument referred to herein or therein, or against any other Person (including
any other Guarantor hereunder) under any other guarantee of, or security for,
any of the Guaranteed Obligations.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VII
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VII hereof, such
72
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.
SECTION 11.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to any this Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under its Note Guarantee and this Article
XI shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
this Article XI, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 11.03. Rights of Contribution.
The Guarantors hereby agree, as between themselves, that if
any Guarantor shall become an Excess Funding Guarantor (as defined below) by
reason of the payment by such Guarantor of any Guaranteed Obligations, each
other Guarantor shall, on demand of such Excess Funding Guarantor (but subject
to the next sentence), pay to such Excess Funding Guarantor an amount equal to
such Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the property, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Guarantor to any Excess
Funding Guarantor under this Section 11.03 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Article XI and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations.
For purposes of this Section 11.03, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Guarantor,
the ratio (expressed as a percentage) of (x) the amount by which the aggregate
present fair saleable value of all property of such Guarantor (excluding any
shares of stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (y) the amount by which the aggregate fair saleable value
of all property of all of the Guarantors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Issuer
73
and the Guarantors hereunder and under the Security Documents) of all of the
Guarantors, determined (A) with respect to any Guarantor that is a party hereto
on the date hereof, as of the Issue Date, and (B) with respect to any other
Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.
ARTICLE XII SATISFACTION AND DISCHARGE
SECTION 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect as to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or
(B) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason
of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any
Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will occur as a result of
such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
74
Notwithstanding the satisfaction and discharge of this
Indenture, if money has been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the provisions of Section 12.02 and Section
9.06 will survive. In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 9.07 hereof, that, by their terms, survive
the satisfaction and discharge of this Indenture.
SECTION 12.02 Application of Trust Money.
Subject to the provisions of Section 9.06, all money deposited
with the Trustee pursuant to Section 12.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 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
Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01; provided that if the Company has made any payment of principal
of, premium, if any, or interest on any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.
ARTICLE XIII MISCELLANEOUS
SECTION 13.01. Trust Indenture Act of 1939.
This Indenture shall be subject to the provisions of the TIA
that are required to be a part of this Indenture and shall, to the extent
applicable, incorporate and be governed by such provisions.
SECTION 13.02. Notices.
(a) Addresses for Notices. Any notice or communication shall
be sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Issuer or any Guarantor:
[to be provided]
Attention: [to be provided]
Facsimile: [to be provided]
75
if to the Trustee:
[to be provided]
Attention: [to be provided]
Facsimile: [to be provided]
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(b) Mailing of Notices. Any notice or communication mailed to
a Holder shall be mailed to him/her at his/her address as it appears on the Note
Register by first class mail and shall be sufficiently given to him/her if so
mailed within the time prescribed. Copies of any such communication or notice to
a Holder shall also be mailed to the Trustee and each Agent at the same time.
(c) Effectiveness of Notices. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders. Except for a notice to the Trustee, which is
deemed given only when received, and except as otherwise provided in this
Indenture, if a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
(d) Waiver of Notice Requirements. 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.
(e) Alternative Methods of Notification. 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 13.03. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Issuer to the Trustee
to take any action under this Indenture, the Issuer shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 13.04. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
76
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of such person, he/she
has made such examination or investigation as is necessary to enable
him/her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such
other opinions as the Trustee may reasonably request.
SECTION 13.05. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.06. Payment Date Other Than a Business Day.
If an Interest Payment Date, redemption date, Change of
Control Payment Date, Excess Proceeds Payment Date or Stated Maturity or date of
maturity of any Note shall not be a Business Day at any place of payment, then
payment of principal of or interest on such Note, as the case may be, need not
be made on such date, but may be made on the next succeeding Business Day at
such place of payment with the same force and effect as if made on the Interest
Payment Date, Change in Control Payment Date, Purchase Date, or redemption date,
or at the Stated Maturity or date of maturity of such Note, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Change in Control Payment Date, Purchase Date, redemption date, Stated Maturity
or date of maturity, as the case may be.
SECTION 13.07. Governing Law.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE,
THE NOTES AND, TO THE EXTENT PROVIDED THEREIN, THE SECURITY DOCUMENTS WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.08. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
77
SECTION 13.09. No Recourse Against Others.
Except for the Note Guarantee provided for in Article XI
hereof, no director, officer, employee, incorporator or shareholder of the
Issuer shall have any liability for any obligations of the Issuer under the
Notes or this Indenture or the Security Documents or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator or stockholder of any of the Guarantors shall
have any liability for any obligations of the Guarantors under the Note
Guarantees, this Indenture or the Security Documents or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder,
by accepting Notes, waives and releases all such liabilities. Such waiver and
release are part of the consideration for the issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
SECTION 13.10. Successors.
All agreements of the Issuer and the Guarantors in this
Indenture and the Notes shall bind its successors by way of merger, amalgamation
or otherwise. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 13.11. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.12. Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 13.13. Qualification of Indenture.
The Issuer shall qualify this Indenture under the TIA and
shall pay all reasonable costs and expenses (including attorneys' fees for the
Issuer, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and printing this Indenture. The Trustee shall be entitled to receive
from the Issuer any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 13.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms and provisions hereof.
78
SECTION 13.15. Consent to Jurisdiction.
Each Debtor Party hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in New
York City and any appellate court from any thereof for the purposes of (and
solely for the purposes of) any suit, action or other proceeding arising out of
or relating to this Indenture or any of the transactions contemplated hereby,
and the each Debtor Party hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such New York State
court or in such Federal court. Each Debtor Party hereby (to the fullest extent
it may effectively do so) irrevocably waives and agrees not to assert, by way of
motion, as a defense, or otherwise in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason whatsoever, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper, or that this Indenture or the subject matter hereof may
not be enforced in such courts. Each Debtor Party hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date hereof at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to
receive on behalf of such Debtor Party and its property service of copies of the
summons and complaint and any other process which may be served in any such
suit, action or proceeding and in any suit, action or proceeding arising out of
or relating to this Indenture to which such Debtor Party is a party. Such
service may be made by mailing or delivering a copy of such process to an Debtor
Party in care of the Process Agent at the Process Agent's above address, and
each Debtor Party hereby irrevocably authorize and direct the Process Agent to
accept such service on their behalf. As an alternative method of service, each
Debtor Party also irrevocably consent to the service of any and all process in
any such suit, action or proceeding by the mailing of copies of such process to
such Debtor Party at its address specified in Section 13.02 hereof. Each Debtor
Party agrees that a final judgment in any such suit, action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Section 13.15 shall
affect the right of the Trustee to serve legal process in any other manner
permitted by law or affect the right of the Trustee to bring any action or
proceeding against any Debtor Party or its property in the courts of any other
jurisdictions.
SECTION 13.16. Judgment Currency.
The Issuer shall indemnify each Holder against any loss
incurred by such Holder as a result of any judgment or order being given or made
for any amount due under the Notes and such judgment or order being expressed
and paid in a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between the rate of exchange at
which the United States dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order and the spot rate of exchange in The
City of New York at which such Holder on the date of payment of such judgment or
order is able to purchase United States dollars with the amount of the Judgment
Currency actually received by such Holder. The foregoing indemnity shall
constitute a separate and independent obligation of the Issuer and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into,
United States dollars.
79
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
ISSUER
------
GLOBAL CROSSING NORTH AMERICA
By:
-------------------------------------------
Name:
Title:
GUARANTORS
----------
[NAME OF NEW GLOBAL CROSSING
HOLDING COMPANY]
By:
-------------------------------------------
Name:
Title:
[Names of additional Guarantors to be inserted]
TRUSTEE
-------
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------
Name:
Title:
80
