EXECUTION COPY
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FIRSTWORLD COMMUNICATIONS, INC.
$470,000,000 PRINCIPAL AMOUNT AT MATURITY
13% SENIOR DISCOUNT NOTES DUE 2008
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INDENTURE
Dated as of April 13, 1998
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The Bank of New York,
Trustee
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CROSS-REFERENCE TABLE
Reconciliation and tie between the Trust Indenture Act of 1939, as amended, and
the Indenture, dated as of April 13, 1998
Trust Indenture Act Section Indenture Section
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(Section)310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08; 7.10
(c) N.A.
(Section)311(a) 7.11
(b) 7.11
(c) N.A.
(Section)312(a) 7.06(a); 7.06(b)
(b) 7.06(c)
(c) 7.06(d)
(Section)313(a) 7.06(e)
(b) N.A.
(c) 7.06(e); 7.06(f)
(d) 7.06
(Section)314(a) 4.18; 4.19
(b) N.A.
(c)(1) 10.03
(c)(2) 10.03
(c)(3) N.A.
(d) N.A.
(e) 10.04
(f) 4.19
(Section)315(a) 7.01(b)
(b) 7.05(a)
(c) 7.01(a)
(d) 7.01(c)
(e) 6.10
(Section)316(a) 2.10
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 9.05
(Section)317(a)(1) N.A.
(a)(2) 6.08
i
(b) 2.07
(Section)318(a) 10.01
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
ii
TABLE OF CONTENTS
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ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act . . . . . .25
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . . . . .25
SECTION 1.04. Form of Documents Delivered to Trustee. . . . . . . . . . . .26
SECTION 1.05. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . .27
ARTICLE II.
THE NOTES
Section 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 2.02. Execution and Authentication. . . . . . . . . . . . . . . . .28
SECTION 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . . .28
SECTION 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . .29
SECTION 2.05. Holder Lists. . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . .29
SECTION 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . . . .39
SECTION 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . .39
SECTION 2.09. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . .40
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . .40
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ARTICLE III.
REDEMPTION
SECTION 3.01. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . .41
SECTION 3.02. Selection of Notes to be Redeemed . . . . . . . . . . . . . .41
SECTION 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . . .41
SECTION 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . .42
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . .42
SECTION 3.06. Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . .43
ARTICLE IV.
COVENANTS
SECTION 4.01. Payment of Notes. . . . . . . . . . . . . . . . . . . . . . .43
SECTION 4.02. Maintenance of Office or Agency . . . . . . . . . . . . . . .43
SECTION 4.03. Money for the Note Payments to be Held in Trust . . . . . . .44
SECTION 4.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . .44
SECTION 4.05. Maintenance of Property . . . . . . . . . . . . . . . . . . .45
SECTION 4.06. Payment of Taxes and Other Claims . . . . . . . . . . . . . .45
SECTION 4.07. Repurchase at the Option of Holders upon a
Change of Control. . . . . . . . . . . . . . . . . . . . .45
SECTION 4.08. Limitation on Asset Sales . . . . . . . . . . . . . . . . . .47
SECTION 4.09. Limitation on Consolidated Indebtedness . . . . . . . . . . .50
SECTION 4.10. Limitation on Issuances of Guarantees of Indebtedness . . . .53
SECTION 4.11. Limitation on Restricted Payments . . . . . . . . . . . . . .53
SECTION 4.12. Limitation on Liens . . . . . . . . . . . . . . . . . . . . .56
SECTION 4.13. Limitation on Sale and Leaseback Transactions . . . . . . . .56
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SECTION 4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . . . . . .57
SECTION 4.15. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries. . . . . . . . . . . . . . . . . .58
SECTION 4.16. Transactions with Affiliates. . . . . . . . . . . . . . . . .58
SECTION 4.17. Restricted and Unrestricted Subsidiaries. . . . . . . . . . .59
SECTION 4.18. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 4.19. Compliance Certificate; Notice of Default or
Event of Default . . . . . . . . . . . . . . . . . . . . .61
SECTION 4.20. Limitation on Business Activities . . . . . . . . . . . . . .61
SECTION 4.21. Calculation of Original Issue Discount. . . . . . . . . . . .61
ARTICLE V.
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. Merger, Consolidation or Sale of Assets . . . . . . . . . . .62
SECTION 5.02. Successor Corporation Substituted . . . . . . . . . . . . . .63
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . .63
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . .65
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . .67
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . .67
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . .67
SECTION 6.07. Rights of Holders to Receive Payment. . . . . . . . . . . . .68
SECTION 6.08. Trustee May File Proofs of Claim. . . . . . . . . . . . . . .68
SECTION 6.09. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . .69
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SECTION 6.10. Undertaking for Costs . . . . . . . . . . . . . . . . . . . .69
SECTION 6.11. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . .70
SECTION 6.12. Trustee May Enforce Claims Without Possession of
the Notes. . . . . . . . . . . . . . . . . . . . . . . . .70
SECTION 6.13. Restoration of Rights and Remedies. . . . . . . . . . . . . .70
SECTION 6.14. Rights and Remedies Cumulative. . . . . . . . . . . . . . . .70
SECTION 6.15. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . .70
ARTICLE VII.
TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . .71
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . .71
SECTION 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . .72
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . .73
SECTION 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . .73
SECTION 7.06. Preservation of Information; Reports by Trustee to
Holders. . . . . . . . . . . . . . . . . . . . . . . . . .73
SECTION 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . . .74
SECTION 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . .75
SECTION 7.09. Successor Trustee by Xxxxxx . . . . . . . . . . . . . . . . .77
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . .77
SECTION 7.11. Preferential Collection of Claims Against Company . . . . . .78
ARTICLE VIII.
DEFEASANCE
SECTION 8.01. Company's Option to Effect Legal Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . . . .78
SECTION 8.02. Legal Defeasance and Discharge. . . . . . . . . . . . . . . .78
SECTION 8.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . .79
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SECTION 8.04. Conditions to Defeasance or Covenant Defeasance . . . . . . .79
SECTION 8.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Miscellaneous Provisions. . . . . . . . . .81
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . .81
ARTICLE IX.
AMENDMENTS
SECTION 9.01. Without Consent of Holders. . . . . . . . . . . . . . . . . .82
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . .82
SECTION 9.03. Effect of Supplemental Indentures . . . . . . . . . . . . . .83
SECTION 9.04. Compliance with Trust Indenture Act . . . . . . . . . . . . .83
SECTION 9.05. Revocation and Effect of Consents and Waivers . . . . . . . .83
SECTION 9.06. Notation on or Exchange of Notes. . . . . . . . . . . . . . .84
SECTION 9.07. Trustee to Execute Supplemental Indentures. . . . . . . . . .84
SECTION 9.08. Payments for Consent. . . . . . . . . . . . . . . . . . . . .84
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . .85
SECTION 10.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .85
SECTION 10.03. Certificate and Opinion as to Conditions Precedent . . . . .85
SECTION 10.04. Statements Required in Certificate or Opinion. . . . . . . .85
SECTION 10.05. Rules by Trustee, Paying Agent and Note Registrar. . . . . .86
SECTION 10.06. Payments on Business Days. . . . . . . . . . . . . . . . . .86
SECTION 10.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . . .86
SECTION 10.08. No Recourse Against Others . . . . . . . . . . . . . . . . .86
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SECTION 10.09. Successors . . . . . . . . . . . . . . . . . . . . . . . . .86
SECTION 10.10. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .86
SECTION 10.11. Table of Contents; Headings. . . . . . . . . . . . . . . . .86
SECTION 10.12. Severability . . . . . . . . . . . . . . . . . . . . . . . .86
SECTION 10.13. Further Instruments and Acts . . . . . . . . . . . . . . . .87
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT B-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-2
EXHIBIT B-3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-3
EXHIBIT C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
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INDENTURE, dated as of April 13, 1998, between FIRSTWORLD COMMUNICATIONS, INC.,
a California corporation (the "COMPANY"), having its principal office at 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, and THE BANK OF NEW
YORK, a New York banking corporation, as trustee hereunder (the "Trustee"),
having its Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
RECITALS OF THE COMPANY
The Company has duly authorized the creation and issue of its 13% Senior
Discount Notes due 2008 (the "Notes") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid instrument of the Company, in accordance with their respective terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in consideration
of the premises and the purchase of the Notes by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular; and
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP.
"Accreted Value" means, for any date of calculation, the amount calculated
pursuant to (i), (ii), (iii) or (iv) for each $1,000 of principal amount at
maturity of Notes:
(i) if such date of calculation occurs on one or more of the following
dates (each a "Semi-Annual Accrual Date"), the Accreted Value will equal the
amount set forth below for such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRETED
ACCRUAL DATE VALUE
April 15, 1998................... $532.73
October 15, 1998................. 567.36
April 15, 1999................... 604.24
October 15, 1999................. 643.52
April 15, 2000................... 685.34
October 15, 2000................. 729.89
April 15, 2001................... 777.34
October 15, 2001................. 827.86
April 15, 2002................... 881.67
October 15, 2002................. 938.98
April 15, 2003................... 1000.00
(ii) if such date of calculation occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) $532.35 and (b) an
amount equal to the product of (1) the Accreted Value for the first Semi-Annual
Accrual Date less $532.35 multiplied by (2) a fraction, the numerator of which
is the number of days from the Issue Date to such date of calculation, using a
360-day year of twelve 30-day months, and the denominator of which is the number
of days elapsed from the Issue Date to the first Semi-Annual Accrual Date, using
a 360-day year of twelve 30-day months;
(iii) if such date of calculation occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value of
Semi-Annual Accrual Date immediately preceding such date of calculation and (b)
an amount equal to the product of (1) the Accreted Value for the immediately
following Semi-Annual Accrual Date less the Accreted Value for the immediately
preceding Semi-Annual Accrual Date multiplied by (2) a fraction, the numerator
of which is the number of days from the immediately preceding Semi-Annual
Accrual Date to such date of calculation, using a 360-day year of twelve 30-day
months, and the denominator of which is 180; or
(iv) if such date of calculation occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, but excluding
Indebtedness which is extinguished, retired or repaid in connection with such
other Person merging with or into or becoming a Subsidiary of such specified
Person.
"Act" when used with respect to any Holder, has the meaning set forth in
Section 1.05 hereof.
2
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "under common control with" and "controlled
by"), as used with respect to any Person, shall mean 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 Stock, by
agreement or otherwise; provided, that Beneficial Ownership of 10% or more of
the Voting Stock of a Person shall be deemed to be control.
"Affiliate Transaction" has the meaning set forth in Section 4.16 hereof.
"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 that apply to such transfer or exchange.
"Asset Sale" by any Person means any transfer, conveyance, sale, lease or
other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary of the specified
Person, but excluding a disposition by a Restricted Subsidiary of such Person to
such Person or a Restricted Subsidiary of such Person or by such Person to a
Restricted Subsidiary of such Person) of (i) shares of Capital Stock or other
ownership interests of a Restricted Subsidiary of such Person, (ii)
substantially all of the assets of such Person or any of its Restricted
Subsidiaries representing a division or line of business (other than as part of
a Permitted Investment) or (iii) other assets or rights of such Person or any of
its Restricted Subsidiaries outside of the ordinary course of business and, in
each case, that is not governed by the provisions of Section 4.07 or 5.01 of the
Indenture; PROVIDED that "Asset Sale" shall not include (i) sales or other
dispositions of inventory, receivables and other current assets in the ordinary
course of business, (ii) simultaneous exchanges by the Company or any Restricted
Subsidiary of Telecommunications Assets for other Telecommunications Assets in
the ordinary course of business; PROVIDED that the applicable Telecommunications
Assets received by the Company or such Restricted Subsidiary have at least
substantially equal Fair Market Value to the Company or such Restricted
Subsidiary (as determined by the Board of Directors whose good faith
determination shall be conclusive and evidenced by a Board Resolution filed with
the Trustee), (iii) disposals or replacements of obsolete, uneconomical,
negligible, worn-out or surplus property in the ordinary course of business;
(iv) sales or other dispositions of assets in a single or series of related
transactions with a Fair Market Value or net proceeds (as certified in an
Officers' Certificate) not in excess of $2 million; (v) a Restricted Payment
that is permitted by Section 4.11 of the Indenture; or (vi) a conveyance
constituting or pursuant to a Permitted Lien.
"Asset Sale Offer" has the meaning set forth in Section 4.08(c) hereof.
"Asset Sale Payment Date" has the meaning set forth in Section 4.08(d)(ii)
hereof.
3
"Asset Sale Purchase Price" has the meaning set forth in Section 4.08(c)
hereof.
"Attributable Indebtedness" means, with respect to any Sale and Leaseback
Transaction of any Person, as at the time of determination, the greater of (i)
the capitalized amount in respect of such transaction that would appear on the
balance sheet of such Person in accordance with GAAP and (ii) the present value
(discounted at a rate consistent with accounting guidelines, as determined in
good faith by the responsible accounting officer of such Person) of the payments
during the remaining term of the lease (including any period for which such
lease has been extended or may, at the option of the lessor, be extended) or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of a penalty (in which case the rental payments shall
include such penalty).
"Authentication Order" has the meaning set forth in Section 2.02.
"Average Life" means, as of any date, with respect to any debt security or
Disqualified Stock, the quotient obtained by dividing (i) the sum of the
products of (x) the number of years from such date to the dates of each
scheduled principal payment or redemption payment (including any sinking fund or
mandatory redemption payment requirements) of such debt security or Disqualified
Stock multiplied in each case by (y) the amount of such principal or redemption
payment, by (ii) the sum of all such principal or redemption payments.
"Beneficial Owner" means a beneficial owner as defined in Rules 13d-3 and
13d-5 under the Exchange Act (or any successor rules), including the provision
of such Rules that a Person shall be deemed to have beneficial ownership of all
securities that such Person has a right to acquire within 60 days; PROVIDED that
a Person will not be deemed a beneficial owner of, or to own beneficially, any
securities if such beneficial ownership (1) arises solely as a result of a
revocable proxy delivered in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the Exchange Act and (2) is not also then
reportable on Schedule 13D or Schedule 13G (or any successor schedule) under the
Exchange Act.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of the Board of Directors.
"Board Resolution" means a duly adopted resolution of the Board of
Directors in full force and effect at the time of determination.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law, executive order or regulation to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Indebtedness arrangement
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person prepared in accordance
4
with GAAP, and the stated maturity thereof shall be the date of the last payment
of rent or any amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" in any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person and any rights (other than Indebtedness convertible into an
equity interest), warrants or options to subscribe for or acquire an equity
interest in such Person.
"Cash Equivalents" means (i) United States dollars, (ii) 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, (iii) 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 million and a rating from Xxxxx'x
Investors Service, Inc. or Standard & Poor's Corporation of "A" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having a rating from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Corporation of A-2; P-2 or better and in each
case maturing within six months after the date of acquisition and (vi) money
market and mutual funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i)-(v) of this definition.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition, 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 or group (as
such term is used in Section 13(d)(3) and 14 (d)(2) of the Exchange Act), (ii)
the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) any Person or group (as defined above) other than the Permitted
Holders is or becomes the Beneficial Owner, directly or indirectly, of more than
35% of the total Voting Stock or Total Common Equity of the Company, including
by way of merger, consolidation or otherwise or (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Change of Control Offer" has the meaning set forth in Section 4.07(a)
hereof.
"Change of Control Payment Date" has the meaning set forth in Section
4.07(b)(ii) hereof.
"Change of Control Purchase Price" has the meaning set forth in Section
4.07(a) hereof.
"clearing agency" has the meaning set forth in Section 3(a)(23) of the
Exchange Act.
5
"Closing Date" shall mean the first date on which Notes are issued by the
Company.
"Closing Price" on any Trading Day with respect to the per share price of
any shares of Capital Stock means the last reported sale price regular way or,
in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if such shares of Capital Stock are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the Nasdaq
National Market or, if such shares are not listed or admitted to trading on any
national securities exchange or quoted on Nasdaq National Market but the issuer
is a Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act) and the
principal securities exchange on which such shares are listed or admitted to
trading is a Designated Offshore Securities Market (as defined in Rule 902(a)
under the Securities Act), the average of the reported closing bid and asked
prices regular way on such principal exchange, or, if such shares are not listed
or admitted to trading on any national securities exchange or quoted on Nasdaq
National Market and the issuer and principal securities exchange do not meet
such requirements, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
that is selected from time to time by the Company for that purpose and is
reasonably acceptable to the Trustee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, the body
performing such duties at such time.
"Common Stock" means Capital Stock other than Preferred Stock.
"Company" means the party named as such in the preamble to this Indenture
until a successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means such successor.
"Company Order" means a written order signed in the name of the Company by
(i) its Chairman of the Board, President, a Vice Chairman or a Vice President,
and (ii) its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary.
"Consolidated Cash Flow Available for Fixed Charges" for any period means
the Consolidated Net Income of the Company and its Restricted Subsidiaries for
such period increased by the sum of (i) Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for such period, plus (ii) Consolidated
Income Tax Expense of the Company and its Restricted Subsidiaries for such
period, plus (iii) the consolidated depreciation and amortization expense
included in the income statement of the Company and its Restricted Subsidiaries
for
6
such period, plus (iv) any non-cash expense related to the issuance to employees
of the Company or any Restricted Subsidiary of the Company of options to
purchase Capital Stock of the Company or such Restricted Subsidiary, plus (v)
any non-cash expense related to a purchase accounting adjustment not requiring
an accrual or reserve and separately disclosed in the Company's income
statement, and decreased by the amount of any non-cash item that increases such
Consolidated Net Income, all as determined on a consolidated basis in accordance
with GAAP; PROVIDED that there shall be excluded therefrom the Consolidated Cash
Flow Available for Fixed Charges (if positive) of any Restricted Subsidiary of
the Company (calculated separately for such Restricted Subsidiary in the same
manner as provided above for the Company) that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Income Tax Expense" for any period means the aggregate
amounts of the provisions for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means for any period the interest expense
included in a consolidated income statement (excluding interest income) of the
Company and its Restricted Subsidiaries for such period in accordance with GAAP,
including without limitation or duplication (or, to the extent not so included,
with the addition of), (i) the amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation
calculated in accordance with the effective interest method of accounting; (ii)
any payments or fees with respect to letters of credit, bankers' acceptances or
similar facilities; (iii) fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements: (iv)
Preferred Stock dividends of the Company and its Restricted Subsidiaries (other
than dividends paid in shares of Preferred Stock that is not Disqualified Stock)
declared and paid or payable; (v) accrued Disqualified Stock dividends of the
Company and its Restricted Subsidiaries, whether or not declared or paid; (vi)
interest on Indebtedness Guaranteed by the Company and its Restricted
Subsidiaries: and (vii) the portion of any Capital Lease Obligation paid during
such period that is allocable to interest expense in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis determined in accordance
with GAAP; PROVIDED that there shall be excluded therefrom, without duplication
(i) all items classified as extraordinary, (ii) any net income (or net loss) of
any Person other than such Person and its Restricted Subsidiaries, except to the
extent of the amount of dividends or other distributions actually paid to such
Person or its Restricted Subsidiaries by such other Person during such period,
(iii) the net income of any Person acquired by such Person or any of its
Restricted Subsidiaries in a pooling-of-interests transaction for any period
prior to the date of the related acquisition, (iv) any gain or loss, net of
taxes, realized on the termination of any employee pension benefit plan, (v) net
gains (or net losses) in respect of Asset Sales by such Person or its Restricted
Subsidiaries, (vi) the net income (or net loss) of any
7
Restricted Subsidiary of such Person to the extent that the payment of dividends
or other distributions to such Person is restricted by the terms of its charter
or any agreement, instrument, contract, judgment, order, decree, statute, rule,
governmental regulation or otherwise, except for any dividends or distributions
actually paid by such Restricted Subsidiary to such Person, and (vii) the
cumulative effect of changes in accounting principles.
"Consolidated Net Worth" of any Person means, at any date of determination,
the consolidated stockholders' equity or partners' capital (excluding
Disqualified Stock) of such Person and its Subsidiaries, as determined in
accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the Issue Date or (ii) was nominated for election to such Board of
Directors with the affirmative vote of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or election or who
was elected or appointed in the ordinary course by Continuing Directors or other
directors so elected or appointed.
"Corporate Trust Office" means the principal office of the Trustee in the
Borough of Manhattan, The City of New York, New York at which at any particular
time its corporate trust business shall be principally administered, which at
the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covenant Defeasance" has the meaning set forth in Section 8.03 hereof.
"CUSIP" has the meaning assigned to it in Section 2.13.
"Default" means any event, act or condition, the occurrence of which is, or
after notice or the passage of time or both would be, an Event of Default.
"Default Amount" means (i) until (but excluding) the Full Accretion Date,
the Accreted Value of the Notes as of such date and (ii) on or after the Full
Accretion Date, the "Default Amount" shall equal 100% of the principal amount
thereof.
"Defaulted Interest" has the meaning set forth in Section 2.12 hereof.
"Defeasance" has the meaning set forth in Section 8.02 hereof.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, in the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the
8
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, or otherwise, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, or is exchangeable for
Indebtedness at any time, in whole or in part, on or prior to the Stated
Maturity of the Notes.
"DTC" has the meaning assigned to it in Section 2.03.
"Enron" means Enron Capital & Trade Resources Corp.
"Equity Commitment" means the investment in the Company by Spectra 3 and
Enron, no later than the Issue Date, of an additional $20 million pursuant to
the SpectraNet International Common Stock Purchase Agreement dated as of
December 30, 1997, as amended, among the Company, Enron and Spectra 3.
"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).
"Event of Default" has the meaning set forth in Section 6.01 hereof.
"Excess Proceeds" has the meaning set forth in Section 4.08(b) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Exchange Note" means any Note issued in exchange for an Original Note or
Original Notes pursuant to the Registered Exchange Offer or otherwise registered
under the Securities Act and any Note with respect to which the next preceding
Predecessor Note of such Note was an Exchange Note.
"Existing Indebtedness" means Indebtedness outstanding on the date of this
Indenture (other than under the Senior Credit Facility).
"Fair Market Value" means, with respect to any asset or Property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy, as determined in good faith by the Board of
Directors.
"Full Accretion Date" means April 15, 2003.
9
"GAAP" means United States generally accepted accounting principles,
consistently applied, as 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 may be
approved by a significant segment of the accounting profession of the United
States, that are applicable to the circumstances as of the date of
determination; PROVIDED that, except as otherwise specifically provided herein,
all calculations made for purposes of determining compliance with Article IV or
Section 5.01 hereof shall utilize GAAP as in effect on the Issue Date.
"Global Note" means a global certificate representing Notes, in the form of
Exhibit A hereto bearing the Global Note Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its nominee.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Guarantee" means any direct or indirect obligation, contingent or
otherwise, of a Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person in any manner. The terms
"Guaranteed," "Guaranteeing" and "Guarantor" shall have correlative meanings.
"Holder" means (i) in the case of any Definitive Note, the Person in whose
name such Definitive Note is registered in the Note Register and (ii) in the
case of any Global Note, the Depositary.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Indebtedness or other
obligation including by acquisition of Subsidiaries or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "Incurrence," "Incurred,"
"Incurrable" and "Incurring" shall have meanings correlative to the foregoing);
PROVIDED that a change in GAAP that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an Incurrence of
such Indebtedness and that neither the accrual of interest nor the accretion of
original issue discount shall be deemed an Incurrence of Indebtedness.
Indebtedness otherwise incurred by a Person before it becomes a Subsidiary of
the Company (whether by merger, consolidation, acquisition or otherwise) shall
be deemed to have been incurred at the time at which such Person becomes a
Subsidiary of the Company.
"Indebtedness" means, at any time (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any obligation of such Person for
money borrowed, (ii) any obligation of such Person evidenced by bonds,
debentures, notes, Guarantees or other similar instruments, including,
10
without limitation, any such obligations Incurred in connection with the
acquisition of Property, assets or businesses, excluding trade accounts payable
made in the ordinary course of business, (iii) any reimbursement obligation of
such Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) any obligation of such
Person issued or assumed as the deferred purchase price of Property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business, which in either case are not more than 60 days
overdue or which are being contested in good faith), (v) any Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Disqualified Stock of such Person and, to the extent held by Persons other
than such Person or its Restricted Subsidiaries, the maximum fixed redemption or
repurchase price of Disqualified Stock of such Person's Restricted Subsidiaries,
at the time of determination, (vii) every obligation under Interest Rate
Protection Agreements of such Person, (viii) any Attributable Indebtedness with
respect to any Sale and Leaseback Transaction to which such Person is a party,
(ix) to the extent held by Persons other than such Person or its Restricted
Subsidiaries, the liquidation value of any Preferred Stock issued by Restricted
Subsidiaries of such Person, plus accrued and unpaid dividends, and (x) any
obligation of the type referred to in clauses (i) through (ix) of this
definition of another Person and all dividends and distributions of another
Person the payment of which, in either case, such Person has Guaranteed or is
responsible or liable, directly or indirectly, as obligor, Guarantor or
otherwise. For purposes of the preceding sentence, the maximum fixed repurchase
price of any Disqualified Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were repurchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture; PROVIDED that, if
such Disqualified Stock is not then permitted to be repurchased, the repurchase
price shall be the book value of such Disqualified Stock. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation; PROVIDED that the amount outstanding
at any time of any Indebtedness issued with original issue discount (including,
without limitation, the Notes) is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument, and any such supplemental indenture, respectively.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, which is not also a QIB.
11
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Protection Agreement" of any Person means any forward
contract, futures contract, swap, option, future option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates.
"Investment" in any Person means any direct, indirect or contingent (i)
advance or loan to, Guarantee of any Indebtedness of, extension of credit or
capital contribution to such Person, (ii) the acquisition of any shares of
Capital Stock, bonds, notes, debentures or other securities of such Person, or
(iii) the acquisition, by purchase or otherwise, of all or substantially all of
the business, assets or stock or other evidence of beneficial ownership of such
Person; PROVIDED that Investments shall exclude commercially reasonable
extensions of trade credit. The amount of any Investment shall be the original
cost of such Investment, PLUS the cost of all additions thereto and MINUS the
amount of any portion of such Investment repaid to such Person in cash as a
repayment of principal or a return of capital, as the case may be, up to the
total amount of such Investment, but without any other adjustments for increases
or decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment. In determining the amount of any Investment involving a
transfer of any Property other than cash, such Property shall be valued at its
Fair Market Value at the time of such transfer.
"Issue Date" means the date on which the Notes are first authenticated and
delivered under this Indenture.
"Lien" means, with respect to any Property or other asset, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien (statutory or other), charge, easement, encumbrance, preference,
priority or other security or similar agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such Property or other asset
(including, without limitation, any conditional sale or title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Management Services Agreements" means the Management Consulting Services
Agreement dated December 30, 1997 between the Company and Corporate Managers,
LLC and the Management Consulting Services Agreement dated December 30, 1997
between the Company and Enron, each as in effect on the Issue Date.
"Maturity" means, when used with respect to a Note, the date on which the
principal of such Note becomes due and payable as provided therein or in this
Indenture, whether on the date specified in such Note as the fixed date on which
the principal of such Note is due and payable, on the Change of Control Payment
Date or Asset Sale Payment Date, or by declaration of acceleration, call for
redemption or otherwise.
12
"Moody's" means Xxxxx'x Investors Service, Inc., or, if Xxxxx'x Investors
Service, Inc. shall cease rating the specified debt securities and such ratings
business with respect thereto shall have been transferred to a successor Person,
such successor Person; PROVIDED that if Xxxxx'x Investors Service, Inc. ceases
rating the specified debt securities and its ratings business with respect
thereto shall not have been transferred to any successor Person or such
successor Person is Standard & Poor's, then "Moody's" shall mean any other
nationally recognized rating agency (other than Standard & Poor's) that rates
the specified debt securities and that shall have been designated by the Company
in an Officers' Certificate.
"Net Cash Proceeds" means, with respect to the sale of any Property or
assets by any Person or any of its Restricted Subsidiaries, cash or readily
marketable cash equivalents received net of (i) all reasonable out-of-pocket
expenses of such Person or such Restricted Subsidiary Incurred in connection
with such sale, including, without limitation, all legal, title and recording
tax expenses, commissions and other fees and expenses Incurred (but excluding
any finder's fee or broker's fee payable to any Affiliate of such Person) and
all federal, state, foreign and local taxes arising in connection with such sale
that are paid or required to be accrued as a liability under GAAP by such Person
or its Restricted Subsidiaries, (ii) all payments made or required to be made by
such Person or its Restricted Subsidiaries on any Indebtedness which is secured
by such Properties or other assets in accordance with the terms of any Lien upon
or with respect to such Properties or other assets or which must, by the terms
of such Lien, or in order to obtain a necessary consent to such transaction or
by applicable law, be repaid in connection with such sale, (iii) all
contractually required distributions and other payments made to minority
interest holders (but excluding distributions and payments to Affiliates of such
Person) in Restricted Subsidiaries of such Person as a result of such
transaction and (iv) appropriate amounts to be provided by such Person or any
Restricted Subsidiary thereof, as the case may be, as a reserve in accordance
with GAAP against any liabilities associated with such assets and retained by
such Person or any Restricted Subsidiary thereof, as the case may be, after such
transaction, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such transaction, in each case as determined by the Board of
Directors of such Person, in its reasonable good faith judgment evidenced by a
resolution of the Board of Directors filed with the Trustee; PROVIDED that, in
the event that any consideration for a transaction (which would otherwise
constitute Net Cash Proceeds) is required to be held in escrow pending
determination of whether a purchase price adjustment will be made, such
consideration (or any portion thereof) shall become Net Cash Proceeds only at
such time as it is released to such Person or its Restricted Subsidiaries from
escrow; and provided, further, that any non-cash consideration received in
connection with any transaction, which is subsequently converted to cash, shall
be deemed to be Net Cash Proceeds at such time, and shall thereafter be applied
in accordance with the Indenture.
"Non-U.S. Person" means a Person who is not a U.S. Person within the
meaning of Rule 902 promulgated under the Securities Act.
"Note Register" has the meaning set forth in Section 2.03.
13
"Notes" has the meaning set forth in the Recitals of the Company in this
Indenture and more particularly means any of the Notes authenticated and
delivered under this Indenture.
"Notice of Default" has the meaning set forth in Section 6.01.
"Officer" means the Chairman of the Board of Directors, a Vice Chairman of
the Board of Directors, the President, a Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary.
"Officers' Certificate" means a certificate signed by (i) the Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, the
President, the Chief Executive Officer or a Vice President, and (ii) the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and delivered to the
Trustee, which certificate shall comply with the provisions of Section 10.04
hereof; PROVIDED that any Officers' Certificate delivered pursuant to the first
paragraph of Section 4.19 hereof shall be signed by the Chief Executive Officer,
the Chief Financial Officer or the Chief Accounting Officer.
"Opinion of Counsel" means a written opinion from legal counsel (who may be
counsel to the Company or the Trustee) who is acceptable to the Trustee, which
opinion shall comply with the provisions of Section 10.04 hereof.
"Original Notes" means the Notes issued on the Issue Date.
"Pari Passu Indebtedness" means (i) any Indebtedness of the Company that is
pari passu in right of payment to the Notes and (ii) with respect to any
Guarantee, Indebtedness which ranks pari passu in right of payment to such
Guarantee.
"Participant" means a Person who has an account with the Depositary.
"Paying Agent" means any Person authorized by the Company to make payments
of principal, premium or interest with respect to the Notes on behalf of the
Company.
"Permitted Holders" means Xxxxxx X. Xxxxx, Spectra 1, Spectra 2, Spectra 3,
Enron and their respective Affiliates (other than the Company and its Restricted
Subsidiaries) and any relative in the immediate family of Xxxxxx X. Xxxxx (or
any entity all of the beneficial ownership interests of which are owned by such
a relative) to whom membership interests in Spectra 1, Spectra 2 or Spectra 3
are distributed upon the death of Xxxxxx X. Xxxxx.
"Permitted Interest Rate Protection Agreement" of any Person means any
Interest Rate Protection Agreement entered into with one or more financial
institutions in the ordinary course of business that is designed to protect such
Person against fluctuations in interest rates with respect to Indebtedness
Incurred and which shall have a notional amount no greater than the
14
payments due with respect to the Indebtedness being hedged thereby and not for
purposes of speculation.
"Permitted Investment" means
(i) Cash Equivalents;
(ii) Investments in Property used in the ordinary course of business;
(iii) Investments in any Person as a result of which such Person becomes
(or, in the case of the acquisition of all or substantially all of a
Person's assets, such assets as are acquired by) a Restricted Subsidiary in
compliance with the Indenture;
(iv) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and workers' compensation, performance and
other similar deposits;
(v) Permitted Interest Rate Protection Agreements with respect to any
floating rate Indebtedness that is permitted by the terms of the Indenture
to be outstanding;
(vi) bonds, notes, debentures or other debt securities received as a result
of Asset Sales permitted under Section 4.08 of this Indenture;
(vii) Investments in existence at the Issue Date;
(viii) commission, payroll, travel and similar advances to employees in the
ordinary course of business to cover matters that are expected at the time
of such advances ultimately to be treated as expenses in accordance with
GAAP; and
(ix) stock, obligations or securities received in satisfaction of
judgments.
"Permitted Joint Venture" means an Investment in a Person who is not a
Restricted Subsidiary and who is engaged in the Telecommunications Business.
"Permitted Liens" means (i) Liens existing on the date of the Indenture and
securing Indebtedness outstanding on the date of the Indenture or Incurred on or
after the Issue Date pursuant to any Senior Credit Facility; (ii) Liens in favor
of the Company or any Restricted Subsidiary of the Company; (iii) Liens on
Property of the Company or a Restricted Subsidiary acquired, constructed or
constituting improvements made after the Issue Date of the Notes to secure
Purchase Money Indebtedness or Vendor Financing Indebtedness which is otherwise
permitted under the Indenture, PROVIDED that (a) the principal amount of any
Indebtedness secured by any such Lien does not exceed 100% of such purchase
price or cost of construction or improvement of the Property subject to such
Lien, (b) such Lien attaches to such property prior to, at the time of or within
180 days after the acquisition, completion of construction or commencement of
operation of such Property and (c) such Lien does not extend to or cover any
15
Property other than the specific item of Property (or portion thereof) acquired,
constructed or constituting the improvements made with the proceeds of such
Purchase Money Indebtedness or Vendor Financing Indebtedness; (iv) Liens to
secure Acquired Indebtedness, PROVIDED that (a) such Lien attaches to the
acquired asset prior to the time of the acquisition of such asset, (b) such Lien
does not extend to or cover any other Property and (c) such Lien was not
Incurred in contemplation of such acquisition; (v) Liens to secure Indebtedness
Incurred to extend, renew, refinance or refund (or successive extensions,
renewals, refinancings or refundings), in whole or in part, Indebtedness secured
by any Xxxx referred to in the foregoing clauses (i), (iii) and (iv) so long as
such Lien does not extend to any other Property and the principal amount of
Indebtedness so secured is not increased except as otherwise permitted under
clause (iv) of Section 4.09(b) of this Indenture; (vi) Liens for taxes,
assessments, governmental charges or claims which are not yet delinquent or
which are being contested in good faith by appropriate proceedings, if a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor; (vii) other Liens incidental to the conduct
of the Company's and its Restricted Subsidiaries' business or the ownership of
its property and assets not securing any Indebtedness, and which do not in the
aggregate materially detract from the value of the Company's and its Restricted
Subsidiaries' property or assets when taken as a whole, or materially impair the
use thereof in the operation of its business; (viii) pledges and deposits made
in the ordinary course of business in connection with workers' compensation and
unemployment insurance, statutory Liens of landlords, carriers, warehousemen,
mechanics, materialmen, repairmen and other types of statutory obligations; (ix)
deposits made to secure the performance of tenders, bids, leases, and other
obligations of like nature Incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (x) zoning
restrictions, servitudes, easements, rights-of-way, restrictions and other
similar charges or encumbrances Incurred in the ordinary course of business
which, in the aggregate, do not materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of the Company or its Restricted Subsidiaries; (xi) Liens arising out of
judgments or awards against 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; (xii) any interest or
title of a lessor in the property subject to any lease other than a capital
lease; (xiii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries; (xiv) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or assets; (xv) Liens arising
from filing precautionary Uniform Commercial Code financing statements regarding
leases; (xvi) Liens on property of, or on shares of stock or Indebtedness of,
any corporation existing at the time such corporation becomes, or becomes a part
of, any Restricted Subsidiary; PROVIDED that such Liens do not extend to or
cover any property or assets of the Company or any Restricted Subsidiary other
than the property or assets acquired and provided, further, that such Liens were
not Incurred in contemplation of such transaction; (xvii) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the products
and proceeds thereof; (xviii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the
16
importation of goods; (xix) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are either within the general parameters
customary in the industry and Incurred in the ordinary course of business, in
each case, securing Indebtedness under Permitted Interest Rate Protection
Agreements; and (xx) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of business
in accordance with the past practices of the Company and its Restricted
Subsidiaries prior to the Issue Date.
"Person" means any individual, corporation, limited liability company,
partnership, limited liability partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same Indebtedness as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section 2.06(f)(i)
to be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms hereof, a calculation in accordance with Article 11
of Regulation S-X promulgated under the Securities Act (to the extent
applicable), as interpreted in good faith by the Board of Directors, or
otherwise, a calculation made in good faith by the Board of Directors, as the
case may be.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an underwritten offering of Common Stock
with gross proceeds to the Company of at least $25.0 million pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any employee benefit
plan of the Company).
17
"Purchase Agreement" means the Purchase Agreement, dated as of April 6,
1998, between the Company and the Purchasers, as such agreement may be amended
from time to time.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary (including Acquired Indebtedness 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,
acquisition, development or improvement by the Company or any Restricted
Subsidiary of any Telecommunications Assets of the Company or any Restricted
Subsidiary and including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, as the same may be
amended, supplemented, modified or restated from time to time.
"Purchasers" means Bear, Xxxxxxx & Co. Inc., ING Baring (U.S.) Securities,
Inc., X.X. Xxxxxx Securities Inc. and Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated.
"QIB" means a qualified institutional buyer, as defined in Rule 144A.
"Qualified Stock" of any Person means a class of Capital Stock other than
Disqualified Stock.
"Redemption Date" means, when used with respect to any Note or part thereof
to be redeemed hereunder, the date fixed for redemption of such Notes pursuant
to the terms of the Notes and this Indenture.
"Redemption Price" means, when used with respect to any Note or part
thereof to be redeemed hereunder, the price fixed for redemption of such Note
pursuant to the terms of the Notes and this Indenture, plus accrued and unpaid
interest thereon, if any, to the Redemption Date.
"refinancing" has the meaning assigned to it in Section 4.09.
"Registered Exchange Offer" has the meaning assigned to it in the
Registration Rights Agreement.
"Registrar" has the meaning set forth in Section 2.03.
"Registration Rights Agreement" means the agreement among the Company and
the Purchasers with respect to the Notes dated April 13, 1998.
"Registered Notes" means the Exchange Notes and all other Notes sold or
otherwise disposed of pursuant to an effective registration statement under the
Securities Act, together with their respective Successor Notes.
"Regular Record Date" has the meaning set forth in Exhibit A.
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"Restricted Beneficial Interest" means a beneficial interest in a
Restricted Global Note.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Payment" means
(i) a dividend or other distribution declared or paid on the Capital Stock
of the Company or to the Company's stockholders (in their capacity as
such), or declared or paid to any Person other than the Company or a
Restricted Subsidiary of the Company on the Capital Stock of any Restricted
Subsidiary of the Company, in each case, other than dividends,
distributions or payments made solely in Qualified Stock of the Company or
such Restricted Subsidiary,
(ii) a payment made by the Company or any of its Restricted Subsidiaries
(other than to the Company or any Restricted Subsidiary) to purchase,
redeem, acquire or retire any Capital Stock of the Company or of a
Restricted Subsidiary,
(iii) a payment made by the Company or any of its Restricted Subsidiaries
to redeem, repurchase, defease (including an in-substance or legal
defeasance) or otherwise acquire or retire for value (including pursuant to
mandatory repurchase covenants), prior to any scheduled maturity, scheduled
sinking fund or mandatory redemption payment, Indebtedness of the Company
or such Restricted Subsidiary which is subordinate (whether pursuant to its
terms or by operation of law) in right of payment to the Notes and which
was scheduled to mature on or after the maturity of the Notes or
(iv) an Investment in any Person, including an Unrestricted Subsidiary or
the designation of a Subsidiary as an Unrestricted Subsidiary, other than
(a) a Permitted Investment,
(b) an Investment by the Company in a Restricted Subsidiary or
(c) an Investment by a Restricted Subsidiary in the Company or a
Restricted Subsidiary of the Company.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated as an Unrestricted Subsidiary pursuant to Section 4.17 hereof.
"Rule 144" means Rule 144 promulgated under the Securities Act.
19
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Property is sold or transferred
by such Person or a Restricted Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Restricted Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Credit Facility" means Indebtedness of the Company and its
Subsidiaries Incurred from time to time pursuant to one or more credit
agreements or similar facilities made available from time to time to the Company
and its Subsidiaries, whether or not secured, and including any related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, supplemented, modified or
restated from time to time.
"Separation Date" means the earliest of (i) the date that is 90 days from
the Issue Date, (ii) such date as the Initial Purchasers may, in their
discretion, deem appropriate, (iii) in the event of a Change of Control, the
date the Company mails notice thereof to holders of Notes, (iv) the date on
which the Registered Exchange Offer is consummated and (v) the date on which the
Shelf Registration Statement is declared effective. On the Separation Date, the
Notes and Warrants will be automatically separated.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Special Interest" has the meaning set forth in the form of Note attached
as Exhibit A hereto. Unless the context otherwise requires, references herein
to "interest" on the Notes shall include Special Interest.
"Special Record Date" means a date fixed by the Trustee pursuant to Section
2.12 hereof for the payment of Defaulted Interest.
"Spectra 1" means Colorado Spectra 1, LLC and any member as of the Issue
Date of Colorado Spectra 1, LLC, and any relative in the immediate family of
Xxxxxx X. Xxxxx (or any entity all of the beneficial ownership interests of
which are owned by such a relative) to whom assets of Colorado Spectra 1, LLC
are distributed following a dissolution of Colorado Spectra 1, LLC due to the
death of Xxxxxx X. Xxxxx.
"Spectra 2" means Colorado Spectra 2, LLC and any member as of the Issue
Date of Colorado Spectra 2, LLC, and any relative in the immediate family of
Xxxxxx X. Xxxxx (or any
20
entity all of the beneficial ownership interests of which are owned by such a
relative) to whom assets of Colorado Spectra 2, LLC are distributed following a
dissolution of Colorado Spectra 2, LLC due to the death of Xxxxxx X. Xxxxx.
"Spectra 3" means Colorado Spectra 3, LLC and any member as of the Issue
Date of Colorado Spectra 3, LLC, and any relative in the immediate family of
Xxxxxx X. Xxxxx (or any entity all of the beneficial ownership interests of
which are owned by such a relative) to whom assets of Colorado Spectra 3, LLC
are distributed following a dissolution of Colorado Spectra 3, LLC due to the
death of Xxxxxx X. Xxxxx.
"Standard & Poor's" means Standard & Poor's Ratings Group, a division of
McGraw Hill Corporation, or, if Standard & Poor's Ratings Group shall cease
rating the specified debt securities and such ratings business with respect
thereto shall have been transferred to a successor Person, such successor
Person; PROVIDED that if Standard & Poor's Ratings Group ceases rating the
specified debt securities and its ratings business with respect thereto shall
not have been transferred to any successor Person or such successor Person is
Xxxxx'x, then "Standard & Poor's" shall mean any other nationally recognized
rating agency (other than Xxxxx'x) that rates the specified debt securities and
that shall have been designated by the Company in an Officers' Certificate.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of related 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.
"Step-Up" has the meaning set forth in the form of the Note contained in
Exhibit A hereto.
"Strategic Equity Investment" means an equity investment made by a
Strategic Investor in the Company in an aggregate amount of not less than $25
million.
"Strategic Investor" means a Person (other than the Permitted Holders)
engaged in one or more Telecommunications Businesses that has, or 80% or more of
the Voting Stock of which is owned by a Person that has, an equity market
capitalization at the time of its initial investment in the Company in excess of
$1 billion.
"Subordinated Indebtedness" means Indebtedness of the Company as to which
the payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Indebtedness shall be subordinate to the prior
payment in full of the Notes to at least the following extent: (i) no payments
of principal of (or premium, if any) or interest on or otherwise due in respect
of such Indebtedness may be permitted for so long as any default in the payment
of principal (or premium, if any) or interest on the Notes exists; (ii) in the
event that any other default that with the passing of time or the giving of
notice, or both, would constitute an
21
event of default exists with respect to the Notes, upon notice by 25% or more in
principal amount of the Notes to the Trustee, the Trustee shall have the right
to give notice to the Company and the holders of such Indebtedness (or trustees
or agents therefor) of a payment blockage, and thereafter no payments of
principal of (or premium, if any) or interest on or otherwise due in respect of
such Indebtedness may be made for a period of 179 days from the date of such
notice; and (iii) such Indebtedness may not (x) provide for payments of
principal of such Indebtedness at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of acceleration
of such Indebtedness upon an event of default thereunder), in each case prior to
the final Stated Maturity of the Notes or (y) permit redemption or other
retirement (including pursuant to an offer to purchase made by the Company) of
such other Indebtedness at the option of the holder thereof prior to the final
Stated Maturity of the Notes, other than a redemption or other retirement at the
option of the holder of such Indebtedness (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change of control of
the Company pursuant to provisions substantially similar to those described
under Section 4.07 (and which shall provide that such Indebtedness will not be
repurchased pursuant to such provisions prior to the Company's repurchase of the
Notes required to be repurchased by the Company pursuant to the provisions
described under Section 4.07).
"Subsidiary" means, with respect to any Person, (i) any corporation more
than 50% of the outstanding shares of Voting Stock of which is owned, directly
or indirectly, by such Person, or by one or more other Subsidiaries of such
Person, or by such Person and one or more other Subsidiaries of such Person,
(ii) any general partnership, joint venture or similar entity, more than 50% of
the outstanding partnership or similar interests of which are owned, directly or
indirectly, by such Person, or by one or more other Subsidiaries of such Person,
or by such Person and one or more other Subsidiaries of such Person and (iii)
any limited partnership of which such Person or any Subsidiary of such Person is
a general partner.
"Successor Note" of any particular Note means every Note issued after, and
evidencing all or a portion of the same Indebtedness as that evidenced by, such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Surviving Entity" has the meaning set forth in Section 5.01(a) hereof.
"Telecommunications Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or intended for
use in connection with a Telecommunications Business.
"Telecommunications Business" means the business of (i) transmitting,
providing services relating to or developing applications for the transmission
of, voice, video or data through owned or leased wireline or wireless
transmission facilities or over the internet, (ii)
22
creating, developing, constructing, installing, repairing, maintaining or
marketing communications-related systems, network equipment and facilities,
software and other products, (iii) creating, developing, producing or marketing
audiotext or videotext, (iv) marketing (including direct marketing and
telemarketing), or (v) evaluating, participating in or pursuing any other
business that is primarily related to those identified in the foregoing clauses
(i), (ii), (iii) or (iv) above (in the case of clauses (iii) and (iv), however,
in a manner consistent with the Company's manner of business on the Issue Date),
and shall, in any event, include all businesses in which the Company or any of
its Subsidiaries are engaged on the Issue Date; PROVIDED that the determination
of what constitutes a Telecommunications Business shall be made in good faith by
the Board of Directors.
"Temporary Note" means a temporary Note delivered under Section 2.10
hereof.
"Total Common Equity" of any Person means, as of any date of determination
the product of (i) the aggregate number of outstanding primary shares of Common
Stock of such Person on such day (which shall not include any options or
warrants on, or securities convertible or exchangeable into, shares of Common
Stock of such Person) and (ii) the average Closing Price of such Common Stock
over the 20 consecutive Trading Days immediately preceding such day. If no such
Closing Price exists with respect to shares of any such class, the value of such
shares for purposes of clause (ii) of the preceding sentence shall be determined
by the Board of Directors of the Company in good faith and evidenced by a
resolution of the Board of Directors filed with the Trustee.
"Trading Day" means, with respect to a security traded on a securities
exchange, automated quotation system or market, a day on which such exchange,
system or market is open for a full day of trading.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture except as
required by Section 9.04 hereof; PROVIDED that in the event the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939, as so
amended.
"Trust Officer" means any officer assigned to the Corporate Trust Office of
the Trustee, including any Vice President, Assistant Vice President, Trust
Officer, any Assistant Secretary, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Agreement.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and, thereafter,
means such successor.
23
"Unit Legend" has the meaning set forth in Section 2.06(f)(vi).
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that the
Company has classified as an "Unrestricted Subsidiary" and that has not been
reclassified as a Restricted Subsidiary, pursuant to Section 4.17 hereof.
"U.S. Government Obligations" means (x) securities that are (i) direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally Guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and (y) depository receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (x) above and held
by such Bank for the account of the holder of such depository receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held, PROVIDED that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depository receipt.
"Vendor Financing Indebtedness" means any Indebtedness of the Company or
any Restricted Subsidiary Incurred in connection with the acquisition or
construction of Telecommunications Assets.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Warrant Agreement" means the Warrant Agreement dated as of April 13, 1998,
by and among the Company and The Bank of New York, as Warrant Agent.
24
"Warrants" means the Warrants to purchase Common Stock issued pursuant to
the Warrant Agreement.
"Wholly-Owned Restricted Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests
(other than director's qualifying shares) of which shall at the time be owned by
such Person or by one or more other Wholly-Owned Restricted Subsidiary of such
Person or by such Person and one or more other Wholly-Owned Restricted
Subsidiary of such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture. The following
Trust Indenture Act terms incorporated by reference in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or other obligor on
the Notes, if any.
All other Trust Indenture Act terms used or incorporated by reference in
this Indenture that are defined by the Trust Indenture Act, defined by Trust
Indenture Act reference to another statute or defined by Commission rule have
the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) the words "herein," "hereof" and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(b) "or" is not exclusive;
(c) "including" means including without limitation;
(d) the principal amount of any noninterest bearing or other discount
security (other than the Notes), at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(e) when used with respect to the Notes, the term "principal amount" shall
mean the principal amount thereof at the Stated Maturity of such principal
amount; and
25
(f) unless otherwise expressly provided herein, the principal amount of any
Preferred Stock shall be the greater of (i) the maximum liquidation value of
such Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock.
SECTION 1.04. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Where any Person is
required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 1.05. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by an acknowledgment of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
26
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of the signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
ARTICLE II.
THE NOTES
Section 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A attached hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
initially shall be issued in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(a) GLOBAL NOTES. Notes offered and sold to QIBs in reliance on Rule
144A shall be issued initially in the form of Global Notes, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with a
custodian of the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests. Any endorsement of a Global Note to reflect the amount
of any increase or decrease in the amount of outstanding Notes represented
thereby shall be made by the Trustee, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to
Global Notes.
27
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(b) and Section 2.02, authenticate and deliver the Global Notes that
(i) shall be registered in the name of the Depositary or the nominee of the
Depositary and (ii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions or held by the Trustee as custodian
for the Depositary.
Participants shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or under such Global
Note, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Participants, the operation of customary practices of such Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global
Note.
(c) DEFINITIVE NOTES. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Notes for original issue up
to $470,000,000 aggregate principal amount at maturity on the Issue Date. The
aggregate principal amount at maturity of Notes outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an agent to deal with Holders or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be
28
presented for payment ("Paying Agent"). The Registrar shall keep a register
(the "Note Register") of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with Section 312(a) of the Trust
Indenture Act. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven 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 the Holders of Notes and the Company shall otherwise comply with
Section 312(a) of the Trust Indenture Act.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes are
presented by a Holder to the Registrar with a request to register the transfer
of the Definitive Notes or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as
29
requested only if the Definitive Notes are presented or surrendered for
registration of transfer or exchange, are endorsed and contain a signature
guarantee or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney
and contain a signature guarantee, duly authorized in writing and the Registrar
receives the following documentation (all of which may be submitted by
facsimile):
(i) in the case of Definitive Notes that are Transfer Restricted
Securities, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company or any of its
Subsidiaries, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-1 hereto); or
(B) if such Transfer Restricted Security is being transferred to
a QIB in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-1 hereto); or
(C) if such Transfer Restricted Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certification to
that effect from such Holder (in substantially the form of
EXHIBIT B-1 hereto);
(D) if such Transfer Restricted Security is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-1 hereto), a
certification substantially in the form of EXHIBIT C hereto,
and, if such transfer is in respect of an aggregate
principal amount of Notes of less than $250,000, an Opinion
of Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of
EXHIBIT B-1 hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable
30
to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A DEFINITIVE
NOTE.
(i) Any Person having a beneficial interest in a Global Note may
upon request, subject to the Applicable Procedures, exchange
such beneficial interest for a Definitive Note. Upon receipt
by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person having a
beneficial interest in a Global Note, and, in the case of a
Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of EXHIBIT B-2
hereto);
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
the transferor (in substantially the form of EXHIBIT
B-2 hereto);
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a
private placement exemption from the registration
requirements of the Securities Act that such transfer
is in compliance with the Securities Act and a
certificate in the form of EXHIBIT B-2 attached thereto
and, if such transfer is in respect of an aggregate
principal amount of less than $250,000, an Opinion of
Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act and a certificate
from the applicable transferee (in substantially the
form of EXHIBIT C hereto); or
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of EXHIBIT B-2 hereto) and an Opinion of Counsel
from the transferee or the transferor reasonably
acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the
Securities Act, in which case the Trustee, at the
direction of the Trustee, shall, in accordance with the
31
standing instructions and procedures existing between
the Depositary, cause the aggregate principal amount of
Global Notes, to be reduced accordingly and, following
such reduction, the Company shall execute and, the
Trustee shall authenticate and deliver to the
transferee a Definitive Note in the appropriate
principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest
in a Global Note, pursuant to this Section 2.06(b) shall be
registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or
Indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
Following any such issuance of Definitive Notes, the Trustee,
as Registrar, shall instruct the Depositary to reduce or cause
to be reduced the aggregate principal amount at maturity of
the applicable Global Note to reflect the transfer.
(c) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES. Notwithstanding
any other provision of this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.06), a Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(d) TRANSFER AND EXCHANGE OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST
IN A GLOBAL NOTE. A Definitive Note may not be transferred for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Note, together with:
(A) certification (in substantially the form of EXHIBIT B-3
hereto) that such Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the
Securities Act; and
(B) written instructions directing the Trustee to make, or
to direct the Depositary to make, an endorsement on the
Global Notes to reflect an increase in the aggregate
amount of the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and
cause, or direct the Depositary to cause, in accordance
with the standing instructions and procedures existing
between the Depositary and the Trustee, the number of
Notes represented by the Global Note to be increased
accordingly. If no Global Note is then outstanding, the
Company shall issue and the Trustee shall authenticate
a new Global Note in the appropriate amount.
32
(e) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF DEPOSITARY. If at
any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the Global
Notes is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(f) LEGENDS.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend (the "Private
Placement Legend") in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE
33
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND, IN THE CASE OF CLAUSE (b), (c), (d) OR (e), BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security upon receipt of an Opinion of Counsel from the
transferring holder; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be
34
required to bear the legend set forth in (i) above, but
shall continue to be subject to the provisions of
Section 2.06(b) hereof; PROVIDED, HOWEVER, that with
respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global
Note for a Definitive Note that does not bear the
legend set forth in (i) above, which request is made in
reliance upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such request
is being made pursuant to Rule 144 (such certification
to be substantially in the form of EXHIBIT B-2 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than
exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee provides
an Opinion of Counsel to the Company and the Registrar in form
and substance reasonably acceptable to the Company and the
Registrar (which Opinion of Counsel shall also state that the
transfer restrictions contained in the legend are no longer
applicable):
(A) in the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of the
Registered Exchange Offer in accordance with the Registration
Rights Agreement, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in aggregate principal amount equal
to the principal amount of the Restricted Beneficial Interests
tendered for acceptance by persons that are not (x)
broker-dealers, (y) Persons participating in the distribution
of the Notes or (z) Persons who are affiliates (as defined in
Rule 144) of the Company and accepted for exchange in the
Registered Exchange Offer and (ii) Definitive Notes that do
not bear the Private Placement Legend in an aggregate
principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the
Registered Exchange Offer. The Trustee shall be entitled to
rely upon the authentication order when authenticating the
35
Notes without any obligation to verify that the restrictions
in the preceding sentence have been complied with.
Concurrently with the issuance of such Notes, the Trustee
shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the
Company shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate
principal amount.
(v) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH
36
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(vi) UNIT LEGEND. Each Note issued prior to the Separation Date
shall bear the following legend (the "Unit Legend") on the face
thereof:
"THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY
ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSIST
OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF THE NOTES AND ONE
WARRANT (EACH, A "WARRANT") INITIALLY ENTITLING THE HOLDER
THEREOF TO PURCHASE 7.9002 SHARES OF SERIES B COMMON STOCK, NO
PAR VALUE, OF THE COMPANY. THE NOTES AND WARRANTS WILL BE
AUTOMATICALLY SEPARATED UPON THE EARLIEST TO OCCUR OF (i) 90
DAYS FROM THE DATE OF ISSUANCE, (ii) SUCH DATE AS THE INITIAL
PURCHASERS MAY, IN THEIR DISCRETION, DEEM APPROPRIATE, (iii)
IN THE EVENT OF A CHANGE OF CONTROL (AS DEFINED IN THE
INDENTURE), THE DATE THE COMPANY MAILS NOTICE THEREOF TO
HOLDERS OF NOTES, (iv) THE DATE ON WHICH THE REGISTERED
EXCHANGE OFFER (AS DEFINED IN THE INDENTURE) IS CONSUMMATED
AND (v) THE DATE ON WHICH THE SHELF REGISTRATION STATEMENT (AS
DEFINED IN THE INDENTURE) IS DECLARED EFFECTIVE (THE EARLIEST
OF SUCH DATES, THE "SEPARATION DATE"). THE NOTES EVIDENCED BY
THIS CERTIFICATE MAY NOT BE TRANSFERRED OR SEPARATED FROM, BUT
MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER, WITH THE
WARRANTS UNTIL THE SEPARATION DATE.
(vii) ORIGINAL ISSUE DISCOUNT LEGEND. Each Note shall bear a legend
in substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS
BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; NOT LATER THAN 10
DAYS AFTER APRIL 13, 1998, INFORMATION TO INCLUDE THE ISSUE
PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, AND
YIELD TO MATURITY OF THE SECURITY WILL BE MADE AVAILABLE TO
HOLDERS UPON REQUEST TO XXXXXX XXXXXXX, CHIEF FINANCIAL
OFFICER, FIRSTWORLD COMMUNICATIONS, INC., (000) 000-0000."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in Global Notes have been exchanged for Definitive Notes,
redeemed, repurchased or
37
cancelled, all Global Notes shall be returned to or retained and cancelled by
the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement may be made on such Global Note, by the Trustee, at the direction of
the Trustee, to reflect such reduction but any failure to make such an
endorsement shall not affect the reductions.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 4.07, 4.08 and 9.06
hereto).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Company, 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.
(iv) The Registrar shall not be required: (A) to issue, to register
the transfer of or to exchange Notes during a period beginning
at the opening of fifteen (15) Business Days before the day of
any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part, or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(v) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any agent and the Company 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 neither the Trustee, any agent nor the
Company shall be affected by notice to the contrary.
38
(vi) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02
hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by an Officer of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount at maturity or Accreted Value, as applicable, of
any Note is considered paid under Section 4.01 hereof, it ceases to be
outstanding and ceases to accrete in value or, if applicable, interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrete in value or
accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount at
maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the
39
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return such
canceled Notes to the Company. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest ("Defaulted Interest") in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent Special Record Date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment. The Company shall fix or cause
to be fixed each such Special Record Date and payment date, provided that no
such Special Record Date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the Special Record
Date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the Special Record Date, the related payment date
and the amount of such interest to be paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; PROVIDED that 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 a redemption and that
reliance may be placed only on the other identification numbers printed on
40
the Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE III.
REDEMPTION
SECTION 3.01. NOTICE TO TRUSTEE. If the Company elects to redeem Notes
pursuant to the optional redemption provisions contained on the reverse side of
the Notes (see EXHIBIT A), it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed. The Company
shall give each such notice to the Trustee at least 60 calendar days prior to
the Redemption Date unless the Trustee consents in writing to a shorter period.
Such notice shall be accompanied by an Officers' Certificate and an Opinion of
Counsel from the Company to the effect that such redemption will comply with any
conditions to such redemption set forth herein and in the Notes.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If less than all the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed among the Holders in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee considers fair and appropriate. In selecting Notes to
be redeemed pursuant to this Section 3.02, the Trustee shall make such
adjustments, reallocations and eliminations as it shall deem proper so that the
principal amount at maturity of each Note to be redeemed shall be $1,000 or an
integral multiple thereof, by increasing, decreasing or eliminating any amount
less than $1,000 which would be allocable to any Holder. If the Notes to be
redeemed are Definitive Notes, the Definitive Notes to be redeemed shall be
selected by the Trustee by prorating, as nearly as may be, the principal amount
of Definitive Notes to be redeemed among the Holders of Definitive Notes
registered in their respective names. The Trustee in its discretion may
determine the particular Notes (if there are more than one) registered in the
name of any Holder which are to be redeemed, in whole or in part. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption. The Trustee shall notify the Company promptly of
the Notes or portions of Notes to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 calendar days but not
more than 60 calendar days before a Redemption Date, the Company shall send a
notice of redemption, first class mail, postage prepaid, to Holders of Notes to
be redeemed at the addresses of such Holders as they appear in the Note
Register.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
41
(b) the Redemption Price (and shall specify the portion of such Redemption
Price that constitutes the amount of accrued and unpaid interest to be
paid, if any);
(c) the name and address of the Paying Agent;
(d) that the Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(e) 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, a
new Note or Notes in principal amount equal to the unredeemed portion will
be issued;
(f) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be
redeemed;
(g) that, unless the Company defaults in making the redemption payment,
interest on, or the accretion of the value of, the Notes (or portions
thereof) called for redemption shall cease and such Notes (or portions
thereof) shall cease to accrue interest or cease to accrete in value, as
the case may be, on and after the Redemption Date;
(h) the paragraph of the Notes pursuant to which the Notes are being
called for redemption;
(i) any other information necessary to enable Holders to comply with the
notice of redemption; and
(j) the applicable CUSIP number(s).
At the Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. In such event, the Company shall
provide the Trustee with the information required by this Section 3.03 in a
timely manner.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed, Notes called for redemption shall become due and payable on the
Redemption Date and at the Redemption Price stated in such notice. A notice of
redemption may not be conditional. Upon surrender to the Paying Agent, such
Notes shall be paid at the Redemption Price stated in such notice. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or prior to 10:00 a.m., New
York City time, on each Redemption Date, the Company shall deposit with the
Paying Agent (or, if the Company, one of its Subsidiaries or any of their
Affiliates is the Paying Agent, the Paying Agent shall segregate and hold in
trust for the benefit of the Holders) money, in federal or other immediately
available funds, sufficient to pay the Redemption Price on all Notes to be
redeemed
42
on that date other than Notes or portions of Notes called for redemption on such
date which have been delivered by the Company to the Trustee for cancellation.
So long as the Company complies with the preceding paragraph and the other
provisions of this Article III, interest on the Notes to be redeemed on the
applicable Redemption Date shall cease to accrue or such Notes shall cease to
accrete in value, as the case may be, from and after such date and such Notes or
portions thereof shall be deemed not to be entitled to any benefit under this
Indenture except to receive payment of the Redemption Price on the Redemption
Date. If any Note called for redemption shall not be so paid upon surrender for
redemption, then, from the Redemption Date until such principal is paid,
interest shall be paid on the unpaid principal and, to the extent permitted by
law, on any accrued but unpaid interest thereon, in each case at the rate
prescribed therefor by such Notes, or such Notes shall continue to accrete in
value, as the case may be.
SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender and cancellation of
Note that is redeemed in part, the Company shall issue and the Trustee shall
authenticate and deliver to the surrendering Holder (at the Company's expense) a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered and canceled; PROVIDED that each such Note shall be in a principal
amount at maturity of $1,000 or an integral multiple thereof.
ARTICLE IV.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall promptly pay the
principal of, premium, if any, and interest on, the Notes on the dates and in
the manner provided in the Notes and in this Indenture. Principal, premium and
interest shall be considered paid on the date due if, on such date, the Trustee
or the Paying Agent holds in accordance with this Indenture money sufficient to
pay all principal, premium and interest then due.
To the extent lawful, the Company shall pay interest on (i) if prior to the
Full Accretion Date, any overdue Accreted Value of (and premium, if any, on) the
Notes, or if on or after the Full Accretion Date, any overdue principal of (and
premium, if any, on) the Notes, at the accretion rate or interest rate, as the
case may be, borne on the Notes, plus 1% per annum, and (ii) Defaulted Interest
(without regard to any applicable grace period), at the same rate. The
Company's obligation pursuant to the previous sentence shall apply whether such
overdue amount is due at its Stated Maturity, as a result of the Company's
obligations pursuant to Section 3.05, Section 4.07 or Section 4.08 hereof, or
otherwise.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
43
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Notes may be
presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations; PROVIDED that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation and any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03. MONEY FOR THE NOTE PAYMENTS TO BE HELD IN TRUST. If the
Company, any Subsidiary of the Company or any of their respective Affiliates
shall at any time act as Paying Agent with respect to the Notes, such Paying
Agent shall, on or before each due date of the principal of (and premium, if
any) or interest on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto money sufficient to pay the principal
(and premium, if any) or interest so becoming due until such money shall be paid
to such Persons or otherwise disposed of as herein provided, and shall promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
the Notes, it shall, prior to or on each due date of the principal of (and
premium, if any) or interest on any of the Notes, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Paying Agent shall promptly notify the Trustee of the
Company's action or failure so to act.
SECTION 4.04. CORPORATE EXISTENCE. Subject to the provisions of Article
IV and Article V hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate existence,
rights (charter and statutory) and franchises of the Company and each of its
Restricted Subsidiaries; PROVIDED that the Company and any such Restricted
Subsidiary shall not be required to preserve the corporate existence of any such
Restricted Subsidiary or any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and provided further that any Restricted
Subsidiary may consolidate with, merge into, or sell, convey, lease or otherwise
dispose of all of its property and assets to the Company or any wholly owned
Restricted Subsidiary.
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SECTION 4.05. MAINTENANCE OF PROPERTY. The Company shall cause all
Property used or useful in the conduct of its business or the business of any of
its Restricted Subsidiaries and material to the Company and its Restricted
Subsidiaries taken as a whole to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED that nothing in this Section
4.05 shall prevent the Company from discontinuing the operation or maintenance
of any of such Property if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any of its
Restricted Subsidiaries.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS. The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any of its Restricted Subsidiaries or upon the
income, profits or Property of the Company or any of its Restricted Subsidiaries
and (b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the Property of the Company or any of
its Restricted Subsidiaries; PROVIDED that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings upon stay of execution or the enforcement
thereof and for which adequate reserves in accordance with GAAP, if required, or
other appropriate provision has been made.
SECTION 4.07. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF
CONTROL. (a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to purchase such Holder's Notes, in whole,
or in part in a principal amount at maturity that is an integral multiple of
$1,000, pursuant to the offer described in Section 4.07(b) hereof (the "Change
of Control Offer"), at a purchase price (the "Change of Control Purchase Price")
in cash equal to 101% of the Accreted Value of such Notes (or portions thereof)
on any Change of Control Payment Date prior to the Full Accretion Date, or 101%
of the principal amount of such Notes (or portions thereof) on any Change of
Control Payment Date on or after the Full Accretion Date, plus accrued and
unpaid interest, if any, to the Change of Control Payment Date.
(b) Within 10 calendar days of the date of any Change of Control, the
Company, or the Trustee at the request and expense of the Company, shall send to
each Holder by first class mail, postage prepaid, a notice prepared by the
Company stating:
(i) that a Change of Control has occurred and a Change of Control Offer is
being made pursuant to this Section 4.07, and that all Notes that are timely
tendered will be accepted for payment;
(ii) the Change of Control Purchase Price, and the date Notes are to be
purchased pursuant to the Change of Control Offer (the "Change of Control
Payment Date"), which date
45
shall be a date occurring no earlier than 30 calendar days nor later than 60
calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for
payment will continue to accrete in value or accrue interest, as the case may
be;
(iv) that, unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer shall cease to
accrete in value or accrue interest, as the case may be, from and after the
Change of Control Payment Date;
(v) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of such Notes completed, to the Paying Agent at the address specified in
the notice, prior to the close of business on the third Business Day preceding
the Change of Control Payment Date;
(vi) that any Holder shall be entitled to withdraw such election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter, setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing such Xxxxxx's election to have such Notes or portions
thereof purchased pursuant to the Change of Control Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the
Change of Control Offer must specify the principal amount that is being tendered
for purchase, which principal amount at maturity must be $1,000 or an integral
multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of the
Note or Notes surrendered, which unpurchased portion will be equal in principal
amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes
and to have such Notes purchased pursuant to this Section 4.07.
(c) On the Change of Control Payment Date, the Company shall (i) accept
for payment any Notes or portions thereof properly tendered pursuant to the
Change of Control Offer; (ii) irrevocably deposit with the Paying Agent, by
10:00 a.m., New York City time, on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect of all Notes or
portions thereof so accepted; and (iii) deliver, or cause to be delivered, to
the Trustee the Notes so accepted together with an Officers' Certificate listing
the Notes or portions thereof tendered to the Company and accepted for payment.
The Paying Agent shall promptly send by first class mail, postage prepaid, to
each Holder of Notes or portions thereof so accepted
46
for payment, payment in an amount equal to the Change of Control Purchase Price
for such Notes or portions thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(d) Upon surrender and cancellation of a Note that is purchased in part
pursuant to the Change of Control Offer, the Company shall promptly issue and
the Trustee shall authenticate and deliver to the surrendering Holder of such
Note, a new Note equal in principal amount to the unpurchased portion of such
surrendered Note; PROVIDED that each such new Note shall be in a principal
amount at maturity of $1,000 or an integral multiple thereof.
(e) The Company shall comply with the requirements of Section 14(e) under
the Exchange Act and any other securities laws or regulations, to the extent
such laws and regulations are applicable, in connection with the purchase of
Notes pursuant to a Change of Control Offer.
SECTION 4.08. LIMITATION ON ASSET SALES. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries, directly or indirectly, to,
consummate any Asset Sale, unless:
(i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Sale at least equal to the Fair Market
Value (as evidenced by a Board Resolution delivered to the Trustee) of the
Property or assets sold or otherwise disposed of;
(ii) at least 80 percent of the consideration received in respect of such
Asset Sale by the Company or such Restricted Subsidiary, as the case may be, for
such Property or assets consists of (a) cash, Cash Equivalents and/or
Telecommunications Assets; and / or (b) the assumption of Indebtedness of the
Company or such Restricted Subsidiary (other than Indebtedness that is
subordinated to the Notes) and the release of the Company or the Restricted
Subsidiary, as the case may be, from all liability on the Indebtedness assumed;
and
(iii) the Company or such Restricted Subsidiary, as the case may be, uses
the Net Cash Proceeds from such Asset Sale in the manner set forth in Sections
4.08(b) and (c) hereof.
(b) Within 360 calendar days after the closing of any Asset Sale, the
Company or such Restricted Subsidiary, as the case may be, may, at its option:
(i) reinvest an amount equal to the Net Cash Proceeds, or any portion
thereof, from such Asset Sale in Telecommunications Assets or in Capital Stock
of any Person engaged in the Telecommunications Business in the United States
(PROVIDED that such Person concurrently becomes a Restricted Subsidiary of the
Company); and/or
(ii) apply an amount equal to such Net Cash Proceeds, or remaining Net
Cash Proceeds, to the permanent reduction of Indebtedness of the Company (other
than Indebtedness to a
47
Restricted Subsidiary of the Company) that is senior to or pari passu with the
Notes or to the permanent reduction of Indebtedness or Preferred Stock of any
Restricted Subsidiary of the Company (other than Indebtedness to, or Preferred
Stock owned by, the Company or another Restricted Subsidiary of the Company).
Net Cash Proceeds from any Asset Sale that are not applied pursuant to
clause (i) or (ii) above within 360 calendar days of the closing of such Asset
Sale shall constitute "Excess Proceeds." Pending the final application of any
such Net Cash Proceeds, the Company may temporarily reduce revolving credit
borrowings or otherwise invest such Net Cash Proceeds in any manner that is not
prohibited by this Indenture.
(c) If at any time the aggregate amount of Excess Proceeds calculated as
of such date exceeds $5 million, the Company shall use the then-existing Excess
Proceeds to make an offer, as described in Section 4.08(d) hereof (an "Asset
Sale Offer"), to purchase from all Holders, on a pro rata basis, Notes in an
aggregate principal amount equal to the maximum principal amount that may be
purchased out of the then-existing Excess Proceeds, at a purchase price (the
"Asset Sale Purchase Price") in cash equal to 100 percent of the Accreted Value
of such Notes on any Asset Sale Payment Date occurring prior to the Full
Accretion Date, or 100 percent of the principal amount of such Notes on any
Asset Sale Payment Date on or after the Full Accretion Date, plus accrued and
unpaid interest, if any, to the Asset Sale Payment Date.
(d) Within 30 calendar days of the date the amount of Excess Proceeds
exceeds $5 million, the Company, or the Trustee at the request and expense of
the Company, shall send to each Holder by first class mail, postage prepaid, a
notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to this Section 4.08,
and that all Notes that are timely tendered will be accepted for payment,
subject to proration in the event the amount of Excess Proceeds is less than the
aggregate Asset Sale Purchase Price of all Notes timely tendered pursuant to the
Asset Sale Offer;
(ii) the Asset Sale Purchase Price, the amount of Excess Proceeds that are
available to be applied to purchase tendered Notes, and the date Notes are to be
purchased pursuant to the Asset Sale Offer (the "Asset Sale Payment Date"),
which date shall be a date no earlier than 30 calendar days nor later than 60
calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for
payment will continue to accrete in value or accrue interest, as the case may
be;
(iv) that, unless the Company defaults in the payment of the Asset Sale
Purchase Price with respect thereto, all Notes or portions thereof accepted for
payment pursuant to the Asset Sale Offer shall cease to accrete in value or
accrue interest, as the case may be, from and after the Asset Sale Payment Date;
48
(v) that any Holder electing to have any Notes or portions thereof
purchased pursuant to the Asset Sale Offer will be required to surrender such
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of such Notes completed, to the Paying Agent at the address specified in
the notice, prior to the close of business on the third Business Day preceding
the Asset Sale Payment Date;
(vi) that any Holder shall be entitled to withdraw such election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Asset Sale Payment Date, a telegram, facsimile
transmission or letter, setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Xxxxxx is
withdrawing such Xxxxxx's election to have such Notes or portions thereof
purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the
Asset Sale Offer must specify the principal amount that is being tendered for
purchase, which principal amount at maturity must be $1,000 or an integral
multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of the
Note or Notes surrendered, which unpurchased portion will be equal in principal
amount at maturity to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes
and to have such Notes purchased pursuant to this Section 4.08.
(e) If the aggregate Asset Sale Purchase Price of the Notes surrendered by
Holders exceeds the amount of Excess Proceeds as indicated in the notice
required by Section 4.08(d) hereof, the Trustee shall select the Notes to be
purchased on a pro rata basis based on the Accreted Value, as of the Asset Sale
Payment Date, if such Asset Sale Payment Date is prior to the Full Accretion
Date, or principal amount, if such Asset Sale Payment Date is on or after the
Full Accretion Date, of the Notes tendered, with such adjustments as may be
deemed appropriate by the Trustee, so that only Notes in denominations of $1,000
or integral multiples thereof shall be purchased.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for
payment any Notes or portions thereof properly tendered and selected for
purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii)
irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on
such date, in immediately available funds, an amount equal to the Asset Sale
Purchase Price in respect of all Notes or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted
together with an Officers' Certificate listing the Notes or portions thereof
tendered to the Company and accepted for payment. The Paying Agent shall
promptly send by first class mail, postage prepaid, to each Holder of Notes or
portions thereof so accepted for payment, payment in an amount equal to the
Asset Sale Purchase
49
Price for such Notes or portions thereof. The Company shall publicly announce
the results of the Asset Sale Offer on or as soon as practicable after the Asset
Sale Payment Date.
(g) Upon surrender and cancellation of a Note that is purchased in part,
the Company shall promptly issue and the Trustee shall authenticate and deliver
to the surrendering Holder of such Note a new Note equal in principal amount to
the unpurchased portion of such surrendered Note; PROVIDED that each such new
Note shall be in a principal amount at maturity of $1,000 or an integral
multiple thereof.
(h) Upon completion of an Asset Sale Offer (including payment of the Asset
Sale Purchase Price for accepted Notes), any surplus Excess Proceeds that were
the subject of such offer shall cease to be Excess Proceeds, and the Company may
then use such amounts for general corporate purposes.
(i) The Company shall comply with the requirements of Section 14(e) under
the Exchange Act and any other securities laws or regulations, to the extent
such laws and regulations are applicable, in connection with the purchase of
Notes pursuant to an Asset Sale Offer.
SECTION 4.09. LIMITATION ON CONSOLIDATED INDEBTEDNESS. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness after the Issue Date unless the ratio of (i) the aggregate
consolidated principal amount of Indebtedness of the Company outstanding as of
the most recent available quarterly or annual balance sheet, after giving pro
forma effect to the Incurrence of such Indebtedness and any other Indebtedness
Incurred since such balance sheet date and the receipt and application of the
proceeds thereof, to (ii) Consolidated Cash Flow Available for Fixed Charges for
the four full fiscal quarters immediately preceding the Incurrence of such
Indebtedness for which consolidated financial statements of the Company have
become available, determined on a pro forma basis as if any such Indebtedness
had been Incurred and the proceeds thereof had been applied at the beginning of
such four fiscal quarters, would be less than 6.0 to 1.0 for such four-quarter
periods ending on or prior to December 31, 2000 and 5.5 to 1.0 for such periods
ending thereafter, after giving pro forma effect to the Incurrence of such
Indebtedness and any other Indebtedness Incurred since such balance sheet date.
(b) Notwithstanding the foregoing limitation, the provisions of Section
4.09(a) shall not apply to the Incurrence of any of the following items of
Indebtedness, each such item to be given independent effect:
(i) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Indebtedness under Senior Credit Facilities in an aggregate
principal amount outstanding or available at any one time not to exceed $75
million, and any renewal, extension, refinancing or refunding thereof in an
amount which, together with any principal amount remaining outstanding or
available under all Senior Credit Facilities, does not exceed the aggregate
principal amount outstanding or available under all Senior Credit Facilities
immediately prior to such renewal,
50
extension, refinancing or refunding, less amounts permanently repaid with
proceeds from an Asset Sale;
(ii) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Purchase Money Indebtedness and Vendor Financing Indebtedness,
PROVIDED that the aggregate amount of such Purchase Money Indebtedness or Vendor
Financing Indebtedness Incurred does not exceed 80% of the total cost of the
Telecommunications Assets financed therewith (or, in the case of Vendor
Financing Indebtedness, 100% of the total cost of the Telecommunications Assets
financed therewith if such Vendor Financing Indebtedness was extended for the
purchase of tangible physical assets and was so financed by the vendor thereof
or an affiliate of such vendor);
(iii) the Incurrence by the Company and/or any of its Restricted
Subsidiaries, as applicable, of Indebtedness owed by the Company to any
Restricted Subsidiary of the Company or Indebtedness owed by a Restricted
Subsidiary of the Company to the Company or another Restricted Subsidiary of the
Company; PROVIDED THAT upon (x) the transfer or other disposition by such
Restricted Subsidiary or the Company of any Indebtedness so permitted to a
Person other than the Company or another Restricted Subsidiary of the Company,
(y) the issuance (other than directors' qualifying shares), sale, lease,
transfer or other disposition of shares of Capital Stock (including by
consolidation or merger) of such Restricted Subsidiary to a Person other than
the Company or another such Restricted Subsidiary or (z) the designation of such
Restricted Subsidiary as an Unrestricted Subsidiary, the provisions of this
clause (iii) shall no longer be applicable to such Indebtedness and such
Indebtedness shall be deemed to have been Incurred at the time of such transfer
or other disposition;
(iv) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Indebtedness Incurred to renew, extend, refinance or refund
(each, a "refinancing") the Notes or Indebtedness outstanding at the date of the
Indenture or Purchase Money Indebtedness or Vendor Financing Indebtedness
Incurred pursuant to clause (ii) of this paragraph in an aggregate amount (as
determined pursuant to the definition of "Indebtedness") not to exceed the
aggregate amount of Indebtedness (as so determined), and accrued interest on,
the Indebtedness so refinanced plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness so refinanced or the amount of any premium reasonably determined by
the Company as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated repurchase, plus the reasonable expenses of the
Company Incurred in connection with such refinancing; PROVIDED THAT Indebtedness
the proceeds of which are used to refinance the Notes or Indebtedness which is
PARI PASSU to the Notes or Indebtedness which is subordinate in right of payment
to the Notes shall only be permitted under this clause (iv) if (A) in the case
of any refinancing of the Notes or Indebtedness which is PARI PASSU to the
Notes, the refinancing Indebtedness is PARI PASSU to the Notes or constitutes
Subordinated Indebtedness, and, in the case of any refinancing of Subordinated
Indebtedness, the refinancing Indebtedness constitutes Subordinated Indebtedness
and (B) in any case, the refinancing Indebtedness by its terms, or by the terms
of any agreement or instrument pursuant to which such Indebtedness is issued,
(x) does not provide for payments of principal of such Indebtedness at stated
maturity or
51
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Company
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of the
acceleration of any payment with respect to such Indebtedness upon any event of
default thereunder), in each case prior to the time the same are required by the
terms of the Indebtedness being refinanced and (y) does not permit redemption or
other retirement (including pursuant to an offer to purchase made by the Company
or a Restricted Subsidiary of the Company) of such Indebtedness at the option of
the holder thereof prior to the time the same are required by the terms of the
Indebtedness being refinanced, other than a redemption or other retirement at
the option of the holder of such Indebtedness (including pursuant to an offer to
purchase made by the Company or a Restricted Subsidiary of the Company) which is
conditioned upon a change of control pursuant to provisions substantially
similar to those described under Section 4.07 hereof;
(v) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Indebtedness consisting of Permitted Interest Rate Protection
Agreements;
(vi) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Indebtedness (A) in respect of performance, surety or appeal
bonds provided in the ordinary course of business or (B) arising from customary
agreements providing for indemnification, adjustment of purchase price for
closing balance sheet changes within 90 days after closing, or similar
obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in each case Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company (other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such business, assets or Restricted Subsidiary
of the Company for the purpose of financing such acquisition) and in an
aggregate principal amount not to exceed the gross proceeds actually received by
the Company or any Restricted Subsidiary in connection with such disposition;
and
(vii) the Incurrence by the Company of Indebtedness (other than secured
Acquired Indebtedness) in an aggregate principal amount not to exceed 2.0 times
the sum of the net cash proceeds received by the Company after the date of the
Indenture in connection with any issuance and sale of Capital Stock (other than
Disqualified Stock and other than the proceeds of the Equity Commitment),
PROVIDED THAT such Indebtedness does not mature prior to the Stated Maturity of
the Notes or has an Average Life at least equal to the Notes;
(viii) the Incurrence by the Company and/or any of its Restricted
Subsidiaries of Indebtedness not otherwise permitted to be Incurred pursuant to
clauses (i) through (vii) above, which, together with any other outstanding
Indebtedness Incurred pursuant to this clause (viii), has an aggregate principal
amount not in excess of $10 million at any time outstanding.
(c) Notwithstanding any other provision of this Section 4.09, the maximum
amount of Indebtedness that the Company or a Restricted Subsidiary may Incur
pursuant to this Section
52
4.09, shall not be deemed to be exceeded due solely as the result of
fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of Indebtedness
under this Section 4.09, (1) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (2) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.12
hereof shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.09, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the above clauses, the Company, in its sole discretion, shall classify such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
SECTION 4.10. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS. (a)
The Company will not permit any Subsidiary, directly or indirectly, to
Guarantee, assume or in any other manner become liable with respect to any Pari
Passu Indebtedness or Subordinated Indebtedness of the Company unless such
Subsidiary simultaneously executes and delivers a supplemental indenture to the
Indenture providing for a Guarantee of the Notes on the same terms as the
Guarantee of such Indebtedness PROVIDED THAT (i) such Guarantee need not be
secured unless required pursuant to Section 4.12 and (ii) if such Indebtedness
is by its terms expressly subordinated to the Notes, any such assumption,
Guarantee or other liability of such Subsidiary with respect to such
Indebtedness shall be subordinated to such Subsidiary's Guarantee of the Notes
at least to the same extent as such Indebtedness is subordinated to the Notes.
This paragraph shall not apply to any Guarantee or assumption of liability of
Indebtedness permitted under the Indenture described in clauses (i), (iv), (v)
and (vi) of Section 4.09 (b).
(b) Notwithstanding paragraph (a) of this Section 4.10, any Guarantee by a
Subsidiary of the Notes shall provide by its terms that it (and all Liens
securing the same) shall be automatically and unconditionally released and
discharged upon any sale, exchange or transfer, to any Person not an Affiliate
of the Company, of all or substantially all of the assets of, such Subsidiary,
or all of the Capital Stock of such Subsidiary owned by the Company, which
transaction is in compliance with the terms of the Indenture and such Subsidiary
is released from its Guarantees of other Indebtedness of the Company or any of
its Subsidiaries.
SECTION 4.11. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment unless, at the time of and after giving
effect to such proposed Restricted Payment:
(i) no Default or Event of Default shall have occurred and be continuing
or shall occur as a consequence thereof;
(ii) after giving effect, on a pro forma basis, to such Restricted Payment
and the Incurrence of any Indebtedness the net proceeds of which are used to
finance such Restricted
53
Payment, the Company could incur at least $1.00 of additional Indebtedness
pursuant to Section 4.09(a) hereof; and
(iii) after giving effect to such Restricted Payment on a pro forma basis,
the aggregate amount expended (the amount so expended, if other than cash, to be
determined in good faith by a majority of the disinterested members of the Board
of Directors, whose determination shall be conclusive and evidenced by a
resolution thereof filed with the Trustee) or declared for all Restricted
Payments after the Issue Date does not exceed the sum of
(A) 50% of the Consolidated Net Income of the Company (or, if Consolidated
Net Income shall be a deficit, minus 100% of such deficit) for the period (taken
as one accounting period) beginning on the last day of the fiscal quarter
immediately preceding the Issue Date and ending on the last day of the fiscal
quarter for which the Company's financial statements have become available
immediately preceding the date of such Restricted Payment, PLUS
(B) 100% of the net reduction in Investments, subsequent to the Issue Date,
in any Person, resulting from payments of interest on Indebtedness, dividends,
repayments of loans or advances, or other transfers of Property (but only to the
extent such interest, dividends, repayments or other transfers of Property are
not included in the calculation of Consolidated Net Income), in each case to the
Company or any Restricted Subsidiary from any Person (including, without
limitation, from Unrestricted Subsidiaries) or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of "Investments" in Section 1.01 hereof), not to
exceed in the case of any Person the amount of Investments previously made
subsequent to the Issue Date by the Company or any Restricted Subsidiary in such
Person and which was treated as a Restricted Payment; PLUS
(C) the aggregate net proceeds (other than proceeds received by the Company
pursuant to the Equity Commitment or used in the manner set forth in clause (ii)
of the following paragraph) received after the date of the Indenture, including
the fair value of property other than cash (determined in good faith by a
majority of the disinterested members of the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution thereof filed
with the Trustee): (x) as capital contributions to the Company, (y) from the
issuance (other than to a Restricted Subsidiary) of Capital Stock (other than
Disqualified Stock) of the Company and warrants, rights or options on Capital
Stock (other than Disqualified Stock) of the Company, or (z) from the conversion
of Indebtedness of the Company into Capital Stock (other than Disqualified Stock
and other than by a Restricted Subsidiary) of the Company after the date of the
Indenture.
(b) The foregoing limitations shall not prevent the Company from:
(i) paying a dividend at any time within 60 days after the declaration
thereof if, on the declaration date, the Company could have paid such dividend
in compliance with Section 4.11(a);
54
(ii) retiring:
(A) any Capital Stock of the Company or any Restricted Subsidiary of the
Company,
(B) Indebtedness of the Company that is subordinate to the Notes, in
exchange for, or out of the proceeds of, the substantially concurrent sale of
Qualified Stock of the Company; or
(C) Indebtedness of a Restricted Subsidiary which is subordinate (whether
pursuant to its terms or by operation of law) in right of payment to the Notes
and which was scheduled to mature on or after the maturity of the Notes, in
exchange for, or out of the proceeds of:
(x) the substantially concurrent sale of Qualified Stock of the Company or
(y) the substantially concurrent Incurrence of Indebtedness of the Company
or any Restricted Subsidiary that
(I) is permitted under Section 4.09 hereof,
(II) is not secured by any assets of the Company or any Restricted
Subsidiary to a greater extent than the retired Indebtedness was so secured,
(III) has an Average Life at least as long as the retired Indebtedness, and
(IV) is subordinated in right of payment to the Notes at least to the same
extent as the retired Indebtedness;
(iii) retiring any Indebtedness of the Company that is subordinated in
right of payment to the Notes in exchange for, or out of the proceeds of, the
substantially concurrent Incurrence of Indebtedness of the Company (other than
Indebtedness to a Subsidiary of the Company), PROVIDED THAT such new
Indebtedness
(A) is subordinated in right of payment to the Notes at least to the same
extent as,
(B) has an Average Life at least as long as, and
(C) has no scheduled principal payments due in any amount earlier than, any
equivalent amount of principal under the Indebtedness so retired;
(iv) making payments or distributions to dissenting stockholders pursuant
to applicable law in connection with a consolidation, merger or transfer of
assets permitted in Article V hereof;
(v) retiring any Capital Stock of the Company to the extent necessary (as
determined in good faith by a majority of the disinterested members of the Board
of Directors, whose determination shall be conclusive and evidenced by a
resolution thereof filed with the Trustee) to
55
prevent the loss, or to secure the renewal or reinstatement, of any license or
franchise held by the Company or any Restricted Subsidiary from any governmental
agency;
(vi) retiring any Capital Stock or warrants or options to acquire Capital
Stock of the Company or any Restricted Subsidiary held by any directors,
officers or employees of the Company or any Restricted Subsidiary, PROVIDED
that the aggregate price paid for all such retired Capital Stock, warrants or
options shall not exceed $500,000 in any twelve-month period;
(vii) making Investments in connection with Permitted Joint Ventures in an
aggregate amount not to exceed $15 million; and
(viii) making Investments not otherwise permitted in an aggregate amount
not to exceed $5 million at any time outstanding.
(c) In determining the amount of Restricted Payments permissible under
this Section 4.11, amounts expended pursuant to clauses (ii) and (iii) of the
foregoing paragraph shall not be included as Restricted Payments.
(d) Not later than the date of making any Restricted Payment (including
any Restricted Payment permitted to be made pursuant to the two previous
paragraphs), the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the required calculations were computed, which calculations may be
based upon the Company's latest available financial statements.
SECTION 4.12. LIMITATION ON LIENS. The Company may not, and may not permit
any Restricted Subsidiary of the Company to, Incur or suffer to exist any Lien
(other than a Permitted Lien) on or with respect to any property or assets now
owned or hereafter acquired to secure any Indebtedness without making, or
causing such Restricted Subsidiary to make, effective provision for securing the
Notes (i) equally and ratably with such Indebtedness as to such property for so
long as such Indebtedness will be so secured or (ii) in the event such
Indebtedness is Indebtedness of the Company which is subordinate in right of
payment to the Notes, prior to such Indebtedness as to such property for so long
as such Indebtedness will be so secured.
SECTION 4.13. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into, assume, Guarantee or otherwise become liable with
respect to any Sale and Leaseback Transaction (other than a Sale and Leaseback
Transaction between the Company or a Restricted Subsidiary on the one hand and a
Restricted Subsidiary or the Company on the other hand), unless (i) the Company
or such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Sale and Leaseback Transaction at least equal to the Fair Market
Value (as evidenced by a Board Resolution delivered to the Trustee) of the
Property subject to such transaction; (ii) the Attributable Indebtedness of the
Company or such Restricted Subsidiary with respect thereto is included as
Indebtedness and would be permitted by Section 4.09 hereof; (iii) the Company or
such Restricted Subsidiary would be permitted to create a Lien on such Property
56
without securing the Notes by Section 4.12 hereof; and (iv) the Net Cash
Proceeds from such transaction are applied in accordance with Section 4.08
hereof, if applicable.
SECTION 4.14. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, cause or suffer to exist or
become effective, or enter into, any encumbrance or restriction (other than
pursuant to law or regulation) on the ability of any Restricted Subsidiary (i)
to pay dividends or make any other distributions in respect of its Capital Stock
or pay any Indebtedness or other obligation owed to the Company or any
Restricted Subsidiary; (ii) to make loans or advances to the Company or any
Restricted Subsidiary; or (iii) to transfer any of its Property to the Company
or any other Restricted Subsidiary, except:
(a) any encumbrance or restriction existing as of the Issue Date pursuant
to any agreement relating to any Existing Indebtedness or any Indebtedness under
a Senior Credit Facility otherwise permitted under this Indenture;
(b) any encumbrance or restriction pursuant to an agreement relating to an
acquisition of Property, so long as the encumbrances or restrictions in any such
agreement relate solely to the Property so acquired;
(c) any encumbrance or restriction relating to any Indebtedness of any
Restricted Subsidiary existing on the date on which such Restricted Subsidiary
is acquired by the Company or another Restricted Subsidiary (other than any such
Indebtedness Incurred by such Restricted Subsidiary in connection with or in
anticipation of such acquisition);
(d) any encumbrance or restriction existing under or by reason of
applicable law;
(e) any encumbrance or restriction pursuant to an agreement effecting a
permitted refinancing of Indebtedness issued pursuant to an agreement referred
to in the foregoing clauses (a) through (d), so long as the encumbrances and
restrictions contained in any such refinancing agreement are not materially more
restrictive than the encumbrances and restrictions contained in such agreements;
(f) customary provisions (A) that restrict the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset; (B) existing by virtue of any transfer
of, agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not otherwise
prohibited by the Indenture or (C) arising or agreed to in the ordinary course
of business, not relating to any Indebtedness, and that do not, individually or
in the aggregate, detract from the value of property or assets of the Company or
any Restricted Subsidiary in any manner material to the Company or any
Restricted Subsidiary;
(g) in the case of clause (iii) above, restrictions contained in any
security agreement (including a Capital Lease Obligation) securing Indebtedness
of the Company or a Restricted
57
Subsidiary otherwise permitted under the Indenture, but only to the extent such
restrictions restrict the transfer of the property subject to such security
agreement; and
(h) any restriction with respect to a Restricted Subsidiary of the Company
imposed pursuant to an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Restricted Subsidiary, PROVIDED that the consummation of such transaction would
not result in an Event of Default or an event that, with the passing of time or
the giving of notice or both, would constitute an Event of Default, that such
restriction terminates if such transaction is not consummated and that the
consummation or abandonment of such transaction occurs within one year of the
date such agreement was entered into.
Nothing contained in this Section 4.14 shall prevent the Company or any
other Restricted Subsidiary from (1) creating, incurring, assuming or suffering
to exist any Liens otherwise permitted under Section 4.12 or (2) restricting the
sale or other disposition of property or assets of the Company or any of its
Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries otherwise permitted under Section 4.09 hereof.
SECTION 4.15. LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES. The Company (i) shall not permit any Restricted
Subsidiary to issue any Capital Stock other than to the Company or a Wholly-
Owned Restricted Subsidiary unless immediately after giving effect thereto such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment of the Company or any other Restricted Subsidiary in such Restricted
Subsidiary would have been permitted under Section 4.11 hereof if made on the
date of such issuance and (ii) shall not permit any Person other than the
Company or a Wholly-Owned Restricted Subsidiary to own any Capital Stock of any
Restricted Subsidiary, other than directors' qualifying shares and except for a
sale of 100% of the Capital Stock of a Restricted Subsidiary sold in a
transaction not prohibited by the covenant described under Section 4.08 hereof.
SECTION 4.16. TRANSACTIONS WITH AFFILIATES. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
sell, lease, transfer, or otherwise dispose of, any of its Properties or assets
to, or purchase any Property or assets from, or enter into any 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 or series of related Affiliate Transactions
is on terms that are no less favorable to the Company or such Restricted
Subsidiary than those that would have been obtained in a comparable arm's-length
transaction by the Company or such Restricted Subsidiary with a Person that is
not an Affiliate (or, in the event that there are no comparable transactions
involving Persons who are not Affiliates of the Company or the relevant
Restricted Subsidiary to apply for comparative purposes, is otherwise on terms
that, taken as a whole, the Company has determined to be fair to the Company or
the relevant Restricted Subsidiary) and
58
(b) the Company delivers to the Trustee
(i) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate payments in excess of $1 million, a
Board Resolution certifying that such Affiliate Transaction or series of related
Affiliate Transactions complies with Section 4.16(a) and has been approved by a
majority of the disinterested members of the Board of Directors who have
determined that such Affiliate Transaction or series of related Affiliate
Transactions is in the best interest of the Company or such Restricted
Subsidiary and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate payments in excess of $10 million, a
written opinion from an investment banking firm of national standing in the
United States which, in the good faith judgment of the Board of Directors, is
independent with respect to the Company and its Subsidiaries and qualified to
perform such task; PROVIDED that the following shall not be deemed Affiliate
Transactions:
(i) any employment agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
industry practice;
(ii) any agreement or arrangement with respect to the compensation of a
director or officer of the Company or any Restricted Subsidiary approved by a
majority of the disinterested members of the Board of Directors and consistent
with industry practice;
(iii) transactions between or among the Company and its Restricted
Subsidiaries;
(iv) transactions permitted by Section 4.11 hereof; and
(v) transactions pursuant to the Management Services Agreements, as in
effect on the Issue Date.
SECTION 4.17. RESTRICTED AND UNRESTRICTED SUBSIDIARIES. (a) The Company
may designate a Subsidiary (including a newly formed or newly acquired
Subsidiary) of the Company or any of its Restricted Subsidiaries as an
Unrestricted Subsidiary so long as:
(A) such Subsidiary
(i) does not have any obligations which, if in Default, would result in a
cross default on Indebtedness of the Company or a Restricted Subsidiary (other
than Indebtedness to the Company or a Restricted Subsidiary),
(ii) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of
59
the Company, unless such agreement, contract, arrangement or understanding
constitutes a Restricted Payment permitted by the Indenture;
(iii) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe
for additional Equity Interests or (y) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results;
(iv) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries;
(v) has at least one director on its board of directors that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries or has at least one executive officer that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries;
(vi) such Subsidiary does not own any Telecommunications Assets that are
essential to the operation of the Company's business, taken as a whole and
(vii) one of the following is true:
(x) such Subsidiary has total assets of $1,000 or less,
(y) such Subsidiary has assets of more than $1,000 and an Investment in
such Subsidiary in an amount equal to the Fair Market Value of such Subsidiary
would then be permitted under Section 4.11(a) or
(z) such designation is effective immediately upon such Person becoming a
Subsidiary; and
(B) no Default or Event of Default would occur as a result of such
designation.
(b) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, take any action or enter into any transaction or series of
related transactions that would result in a Person (other than a newly formed
Subsidiary having no outstanding Indebtedness (other than Indebtedness to the
Company or a Restricted Subsidiary) at the date of determination) becoming a
Restricted Subsidiary (whether through an acquisition, the redesignation of an
Unrestricted Subsidiary or otherwise), unless, after giving effect to such
action, transaction or series of related transactions on a pro forma basis, (i)
the Company could incur at least $1 of additional Indebtedness pursuant to
Section 4.09 and (ii) no Default or Event of Default would occur.
(c) Subject to clause (b), an Unrestricted Subsidiary may be redesignated
as a Restricted Subsidiary. The designation of a Subsidiary as an Unrestricted
Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary in compliance with clause (b) shall be made by the Board of Directors
pursuant to a Board Resolution delivered to the Trustee and shall be effective
as of the date specified in such Board Resolution, which shall not be prior to
the date such Board Resolution is delivered to the Trustee.
60
SECTION 4.18. REPORTS. For as long as any Notes remain outstanding,
whether or not required by the rules and regulations of the Commission, the
Company will furnish to the holders of Notes and file with the Commission (i)
all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" that describes the
financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the face of
the financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company) and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such reports, in
each case within the time periods specified in the Commission's rules and
regulations. In addition, for so long as any Notes are outstanding, the Company
will furnish to the holders of the Notes, securities analysts and prospective
investors or beneficial owners of the Notes, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.19. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT OR EVENT OF
DEFAULT. The Company shall deliver to the Trustee within 120 calendar days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate stating whether or not, to the best knowledge of such
officer, the Company has complied with all conditions and covenants under this
Indenture, and, if the Company shall be in Default, specifying all such Defaults
and the nature thereof of which such officer may have knowledge.
For the purposes of this Section 4.19, compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
The Company shall deliver written notice to the Trustee within 30 calendar
days after any executive officer of the Company becomes aware of the occurrence
of any event which constitutes, or with the giving of notice or the lapse of
time or both would constitute, a Default or Event of Default, describing such
Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.20. LIMITATION ON BUSINESS ACTIVITIES. The Company shall not,
and shall not permit its Restricted Subsidiaries to, directly or indirectly,
engage in any business other than the Telecommunications Business.
SECTION 4.21. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Notes
61
as of the end of such year and (ii) such other specific information relating to
such original issue discount as may then be relevant under the Code, as amended
from time to time.
ARTICLE V.
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS. The Company shall
not in any transaction or series of related transactions, consolidate with, or
merge with or into, any other Person or permit any other Person to merge with or
into the Company (other than a merger of a Restricted Subsidiary of the Company
into the Company in which the Company is the continuing corporation), or sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially all
of the Property and assets of the Company and its Restricted Subsidiaries taken
as a whole to any other Person, unless:
(a) either (i) the Company shall be the continuing corporation or (ii) the
corporation (if other than the Company) formed by such consolidation or into
which the Company is merged, or the Person which acquires, by sale, assignment,
conveyance, transfer, lease or disposition, all or substantially all of the
Property and assets of the Company and its Restricted Subsidiaries taken as a
whole (any such corporation or Person being the "Surviving Entity") shall be a
corporation organized and validly existing under the laws of the United States
of America, any political subdivision thereof, any state thereof or the District
of Columbia, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest on all the Notes and the performance of every covenant and
obligation in this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction or series of
related transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred in connection with or in respect of such transaction or
series of related transactions), no Default or Event of Default shall have
occurred and be continuing;
(c) immediately after giving effect to such transaction or series of
related transactions on a pro forma basis (including, without limitation, any
Indebtedness Incurred in connection with or in respect of such transaction or
series of related transactions), the Company (or the Surviving Entity, if the
Company is not continuing) would (A) be permitted to Incur $1.00 of additional
Indebtedness under Section 4.09(a) hereof and (B) have a Consolidated Net Worth
that is not less than the Consolidated Net Worth of the Company immediately
before such transaction or series of related transactions; PROVIDED THAT this
Section 5.01(c) shall not apply to a merger of the Company or a Restricted
Subsidiary into a wholly-owned Subsidiary solely for the purpose of
reincorporating the Company or such Restricted Subsidiary in the State of
Delaware; and
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(d) if, as a result of any such transaction, Property of the Company would
become subject to a Lien prohibited by the provisions of the Indenture described
under Section 4.12 hereof, the Company or the successor entity to the Company
shall have secured the Notes as required thereby.
In connection with any consolidation, merger, conveyance, lease or other
disposition contemplated by this Section 5.01, the Company shall deliver, or
cause to be delivered, to the Trustee, in form reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, lease or disposition and any
supplemental indenture in respect thereto comply with this Article V and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
with, or merger by the Company with or into, any other corporation, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the Property and assets of the Company and its Restricted
Subsidiaries taken as a whole in accordance with Section 5.01 hereof, the
successor corporation formed by such consolidation or into which the Company is
merged, or the Person to which such sale, conveyance, assignment, transfer,
lease, conveyance or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company herein; and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Notes,
except for the obligation to pay the principal of (and premium, if any) and
interest on the Notes.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. "Event of Default," wherever used herein
with respect to the Notes, means any one of the following events (whatever the
reason for such event, and whether it shall be voluntary or involuntary, or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest (including any Special Interest) on
any Note when the same becomes due and payable, and the continuance of such
Default for a period of 30 calendar days; or
(b) default in the payment of the principal of (or premium, if any, on) any
Note when the same becomes due and payable whether upon Maturity, optional
redemption, required repurchase (including pursuant to a Change of Control Offer
or an Asset Sale Offer) or otherwise, or the failure to make an offer to
purchase any Note as herein required; or
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(c) default in the performance, or breach, of any covenant or agreement
contained in Section 4.07, Section 4.08, Section 4.09, Section 4.11, Section
4.12, Section 4.14 or Article V hereof; or
(d) default in the performance, or breach, of any covenant or warranty of
the Company contained in this Indenture or the Notes (other than a covenant or
warranty addressed in Section 6.01(a), Section 6.01(b) or Section 6.01(c)
hereof), and the continuance of such Default or breach for a period of 60
calendar days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25 percent
of the aggregate principal amount of the outstanding Notes specifying such
Default and stating that such notice is a "Notice of Default" delivered in
connection with this Indenture; or
(e) (i) any payment of principal, and premium, if any, in excess of $5
million with respect to Indebtedness of the Company or any Restricted Subsidiary
is not paid when due within the applicable grace period, if any, or (ii)
Indebtedness of the Company or any Restricted Subsidiary is accelerated by the
holders thereof and the amount of principal and premium, if any, of such
accelerated Indebtedness exceeds $5 million; or
(f) a final judgment or final judgments for the payment of money (other
than to the extent covered by insurance as to which the insurance company has
acknowledged coverage and other than to the extent covered by an indemnity given
by an insurance company) is entered against the Company or any Restricted
Subsidiary of the Company in an aggregate amount in excess of $5 million by a
court or courts of competent jurisdiction, which judgment is not discharged,
waived, stayed, bonded or satisfied for a period of 45 consecutive calendar
days; or
(g) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Restricted
Subsidiary of the Company in an involuntary case or proceeding under United
States bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state, or foreign bankruptcy, insolvency, or other similar law or (ii)
a decree or order adjudging the Company or any Restricted Subsidiary of the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of, or in respect
of, the Company or any Restricted Subsidiary of the Company under United States
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency, or similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Restricted Subsidiary of the Company or
of any substantial part of the Property or assets of the Company or any
Restricted Subsidiary of the Company, or ordering the winding-up or liquidation
of the affairs of the Company or any Restricted Subsidiary of the Company, and
the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 45 consecutive calendar days; or
(h) the commencement by the Company or any Restricted Subsidiary of the
Company of a voluntary case or proceeding under United States bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal, state, or
foreign bankruptcy, insolvency or other
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similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent; or (ii) the consent by the Company or any Restricted Subsidiary of
the Company to the entry of a decree or order for relief in respect of the
Company or any Restricted Subsidiary of the Company in an involuntary case or
proceeding under United States bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, state, or foreign bankruptcy, insolvency, or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Restricted Subsidiary of the Company; or
(iii) the filing by the Company or any Restricted Subsidiary of the Company of a
petition or answer or consent seeking reorganization or relief under United
States bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency or other similar law; or (iv)
the consent by the Company or any Restricted Subsidiary of the Company to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or any Restricted Subsidiary of the Company or of any
substantial part of the Property or assets of the Company or any Restricted
Subsidiary of the Company, or the making by the Company or any Restricted
Subsidiary of the Company of an assignment for the benefit of creditors; or (v)
the admission by the Company or any Restricted Subsidiary of the Company in
writing of its inability to pay its debts generally as they become due; or (vi)
the taking of corporate action by the Company or any Restricted Subsidiary of
the Company in furtherance of any such action.
SECTION 6.02. ACCELERATION. If any Event of Default (other than an Event
of Default specified in Section 6.01(g) or Section 6.01(h) hereof) occurs and is
continuing, then and in every such case, the Trustee by a notice in writing to
the Company may, and at the direction of the Holders of not less than 25 percent
of the outstanding aggregate principal amount of Notes by a notice in writing to
the Company and the Trustee, shall declare the Default Amount and any accrued
and unpaid interest on all Notes then outstanding to be immediately due and
payable. Upon any such declaration, such Default Amount and any accrued and
unpaid interest on all Notes then outstanding will become and be immediately due
and payable.
If an Event of Default specified in Section 6.01(g) or Section 6.01(h)
hereof occurs, the Default Amount and any accrued and unpaid interest on all
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of Notes.
In the event of a declaration of acceleration because an Event of Default
set forth in Section 6.01(e) hereof has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the
event of default triggering such Event of Default pursuant to Section 6.01(e)
hereof shall be remedied, or cured, or waived by the holders of the relevant
Indebtedness, within 60 calendar days after such event of default; provided no
judgment or decree for the payment of the money due on the Notes has been
obtained by the Trustee as hereinafter in this Article VI provided.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of
65
the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to the optional redemption provisions of
the Indenture, an equivalent premium shall also become and be immediately due
and payable to the extent permitted by law upon the acceleration of the Notes.
If an Event of Default occurs prior to April 15, 2003 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding the prohibition on redemption of the Notes prior to
such date, then the premium specified in the Indenture shall also become
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.
At any time after a declaration of acceleration with respect to Notes has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article VI provided, the Holders
of a majority in principal amount of the outstanding Notes, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if,
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(i) all overdue installments of interest on all Notes,
(ii) the principal of (and premium, if any, on) any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Notes,
(iii) to the extent that payment of such interest is lawful, interest on
the Defaulted Interest at the rate prescribed therefor in the Notes and this
Indenture, and
(iv) all moneys paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee pursuant to
Section 7.07 hereof; and
(b) all Events of Default with respect to the Notes, other than the
non-payment of the principal of Notes which have become due solely by such
declaration of acceleration, have been cured or waived by the Holders as
provided herein.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 6.03. OTHER REMEDIES. The Company covenants that if an Event of
Default specified in Section 6.01(a) or Section 6.01(b) occurs the Company
shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders, the whole amount then due and payable on the Notes for principal (and
premium, if any) and interest and, to the extent that payment of such interest
shall be legally enforceable, interest upon the overdue principal (and premium,
if any) and upon Defaulted Interest, at the rate or rates prescribed therefor in
such Notes; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and
66
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee pursuant to Section 7.07 hereof.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may and, at the
direction of the Holders of not less than a majority of the outstanding
aggregate principal amount of the Notes, shall institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the Property and
assets of the Company or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to the Notes occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the outstanding Notes may, on behalf of the
Holders of all the Notes, waive any past Default and its consequences under this
Article VI, except a Default (a) in the payment of the principal of (or premium,
if any) or interest on, any Note, or (b) in respect of a covenant or provision
hereof which under Section 9.02 hereof cannot be modified or amended without the
consent of the Holders of each outstanding Note affected.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of not less than a
majority in principal amount of the outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; PROVIDED that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture or unduly prejudicial to the rights of other Holders and would
not subject the Trustee to personal liability, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.06. LIMITATION ON SUITS. No Holder of Notes shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Notes;
(b) the Holders of not less than 25 percent in principal amount of the
outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered and, if requested, provided to
the Trustee security or indemnity satisfactory to the Trustee in its reasonable
discretion against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 30 calendar days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 30-day period by the Holders of a majority in principal
amount of the outstanding Notes;
in any event, it being understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Notes.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of (premium, if any) and interest on the Notes held by such Holder, on
or after the respective due dates expressed in the Notes or the redemption dates
or purchase dates provided for therein, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall be absolute and
unconditional and shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under United States bankruptcy laws, as now or
hereafter constituted, relative to the Company or any other obligor upon the
Notes or the Property and assets of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise, (i) to file and
prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Notes, to file such other papers or
documents and to take such other actions, including participating as a member or
otherwise in any official committee of creditors
68
appointed in the matter, 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
all other amounts due to the Trustee pursuant to Section 7.07 hereof) and of the
Holders allowed in such judicial proceeding, and (ii) to collect and receive any
moneys or other Property payable or deliverable on any such claims and to
distribute the same; and any receiver, assignee, trustee, custodian, liquidator,
sequestrator (or other similar official) in any such proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.09. PRIORITIES. Any money collected by the Trustee pursuant to
this Article VI shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (premium, if any) or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07
hereof;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.09. At least 15 calendar days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states such record date, the payment date and amount to be paid. The Trustee
may mail such notice in the name and at the expense of the Company.
SECTION 6.10. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Note by such Xxxxxx's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply
69
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10 percent in principal
amount of the outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after its Stated Maturity.
SECTION 6.11. WAIVER OF STAY OR EXTENSION LAWS. The Company (to the
extent it may lawfully do so) 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 wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.12. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF THE NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes.
SECTION 6.13. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of Notes has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.14. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided herein, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.15. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article VI or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
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ARTICLE VII.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and shall use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default of which a Trust
Officer has actual knowledge: (i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and (ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; PROVIDED that in
the case of any such certificates or opinions that by any provision of this
Indenture are specifically required to be furnished to the Trustee, the Trustee
shall examine such certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct; PROVIDED
that: (i) this paragraph (c) shall not limit the effect of paragraph (b) of this
Section 7.01; (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(e) 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.
(f) 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 VII and to the provisions of the Trust Indenture Act.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may conclusively rely
on any document (whether in its original or facsimile form) believed by it to be
genuine and to have
71
been signed or presented by the proper Person. Except as provided in Section
7.01(b) hereof, the Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on any
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any such agent; PROVIDED that such agent was
appointed with due care by the Trustee.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED that the Trustee's conduct does not constitute willful
misconduct or gross negligence.
(e) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Section 6.01(c), 6.01(d), 6.01(e) or 6.01(f) hereof, or
of the existence of any Change of Control or Asset Sale unless either (i) a
Trust Officer shall have actual knowledge thereof, or (ii) the Trustee shall
have received notice thereof in accordance with Section 10.02 hereof from the
Company or any Holder of Notes.
(f) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled at the sole expense of the Company to
examine the books, records and premises of the Company, personally or by agent
or attorney and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(h) The Trustee shall not be liable for any action it takes or omits to
take in good faith in accordance with the direction of the Holders of a majority
of the aggregate outstanding principal amount of Notes relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, any Paying Agent
or Note Registrar, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it
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were not Trustee, Paying Agent or Note Registrar hereunder, as the case may be;
PROVIDED that the Trustee must in any event comply with Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes, and it shall not be responsible (a) for any statement of the
Company in this Indenture, including the recitals contained herein, or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication or (b) for compliance by the
Company with the Registration Rights Agreement.
SECTION 7.05. NOTICE OF DEFAULTS. Within 90 calendar days after the
occurrence of any Default hereunder known to a Trust Officer with respect to the
Notes, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Note Register, notice of such Default hereunder known to
the Trustee, unless such Default shall have been cured or waived; PROVIDED that,
except in the case of a Default in the payment of the principal of (or premium,
if any) 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 Trust Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders.
SECTION 7.06. PRESERVATION OF INFORMATION; REPORTS BY TRUSTEE TO HOLDERS.
(a) The Company shall furnish or cause to be furnished to the Trustee:
(i) semiannually, not less than 10 calendar days prior to each Interest
Payment Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the Regular Record Date immediately
preceding such Interest Payment Date, and
(ii) at such other times as the Trustee may request in writing, within 30
calendar days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 calendar days prior to
the time such list is furnished; PROVIDED that if and so long as the Trustee
shall be the Note Registrar for the Notes, no such list need be furnished with
respect to the Notes.
(b) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.06(a) hereof and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.06(a) hereof upon receipt of a new list so furnished.
(c) Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Notes.
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(d) Each Holder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with this Section 7.06, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under this Section 7.06.
(e) Within 60 calendar days after October 15 of each year commencing with
the year 1998, the Trustee shall transmit by mail to all Holders of Notes, a
brief report dated as of such October 15 if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(f) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(g) A copy of each report described in Section 7.06(e) hereof shall, at
the time of its transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Notes are then listed, with the Commission and
also with the Company. The Company shall promptly notify the Trustee of any
stock exchange upon which the Notes are listed or any delisting therefrom.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time such compensation as shall be agreed upon in writing
for their services. The Company shall reimburse the Trustee upon request for all
out-of-pocket expenses incurred or made by them, including costs of collection,
in addition to the compensation for their services. Such expenses shall include
the compensation and expenses, disbursements and advances of the Trustee's
counsel. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust.
The Company shall indemnify each of the Trustee and any predecessor Trustee
for, and hold them harmless against, any and all loss, liability, claim, damage
or expense (including reasonable attorneys' fees and taxes other than taxes
based on the income of the Trustee) arising out of or incurred by it in
connection with the acceptance or administration of the trust created by this
Indenture and the performance of its duties hereunder, except as set forth in
the next paragraph. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend any such claim and the Trustee shall cooperate in the defense of such
claim. The Trustee may have separate counsel of its selection and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of, premium, if any, and interest on, particular Notes.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the resignation or removal of the Trustee and discharge of this
Indenture. Subject to any other rights available to the Trustee under
applicable bankruptcy law, when the Trustee incurs expenses after the occurrence
of a Default specified in Section 6.01(g) or Section 6.01(h) hereof, the
expenses are intended to constitute expenses of administration under bankruptcy
law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. (a) No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article
VII shall become effective until the acceptance of appointment by the successor
Trustee under this Section 7.08.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 calendar days after the giving of
such notice of resignation, the resigning Trustee may petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the outstanding Notes, delivered to the Trustee
and to the Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 calendar days after such
removal, the removed Trustee may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months, unless the
Trustee's duty to resign is stayed in accordance with the provisions of Section
310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible under Section 7.10 hereof and
shall fail to resign after written request therefor by the Company or by any
such Holder; or
(iii) the Trustee shall become incapable of acting or a decree or order
for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Trustee in an involuntary case under the United States
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Trustee or of its Property and
assets or affairs, or any public officer shall take charge or control of
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the Trustee or of its Property and assets or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation; or
(iv) the Trustee shall commence a voluntary case under the United States
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trustee or
its Property and assets or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts generally
as they become due, or shall take corporate action in furtherance of any such
action,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to the Notes, or (ii) subject to Section 6.10 hereof,
any Holder who has been a bona fide Holder of a Note for at least six months
may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for the Notes.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by the
Holders of a majority in principal amount of the outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with this
Section 7.08, become the successor Trustee and to that extent replace any
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and shall have accepted
appointment in the manner hereinafter provided, any Holder that has been a bona
fide Holder of a Note for at least six months may, subject to Section 6.10
hereof, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such resignation, removal and appointment by first class mail, postage
prepaid, to the Holders as their names and addresses appear in the Note
Register. Each notice shall include the name of the successor Trustee with
respect to the Notes and the address of its Corporate Trust Office.
(g) In the event of an appointment hereunder of a successor Trustee, each
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such
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successor Trustee all the rights, powers and trusts of the retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all Property
and money held by such former Trustee hereunder, subject to its Lien, if any,
provided for in Section 7.07 hereof.
(h) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Section 7.08(g) hereof.
(i) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article VII and under the Trust Indenture Act.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder; PROVIDED that such corporation shall be otherwise
qualified and eligible under this Article VII and under the Trust Indenture Act,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In the event that
any Notes shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Notes, in either its
own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. There shall at all times be
a Trustee hereunder which shall be
(i) a corporation organized and doing business under the laws of the United
States of America, any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority,
(ii) or a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee pursuant to
a rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least
$25,000,000.
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If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 7.10, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Affiliate of the Company shall serve as Trustee
hereunder. If at any time the Trustee shall cease to be eligible to serve as
Trustee hereunder pursuant to the provisions of this Section 7.10, it shall
resign immediately in the manner and with the effect specified in this Article
VII.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act. 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 Trust Indenture Act.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
ARTICLE VIII.
DEFEASANCE
SECTION 8.01. COMPANY'S OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. The Company may elect, at its option, at any time, to have Section
8.02 or Section 8.03 hereof applied to the outstanding Notes (in whole and not
in part) upon compliance with the conditions set forth below in this Article
VIII, such election shall be evidenced by a Board Resolution delivered to the
Trustee.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of its option to have this Section 8.02 applied to the outstanding
Notes (in whole and not in part), the Company shall be deemed to have been
discharged from its obligations with respect to such Notes as provided in this
Section 8.02 on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Notes and to have satisfied all its
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder:
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(a) the rights of Holders of such Notes to receive, solely from the trust
fund described in Section 8.04 hereof and as more fully set forth in such
Section 8.04, payments in respect of the principal of and any premium and
interest on such Notes when payments are due,
(b) the Company's obligations with respect to such Notes under Sections
2.09, 2.10, 2.12, 4.02 and 4.03 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee under
this Indenture and
(d) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option to have this Section 8.02 applied to the outstanding Notes (in whole and
not in part) notwithstanding the prior exercise of its option to have Section
8.03 hereof applied to such Notes.
SECTION 8.03. COVENANT DEFEASANCE. Upon the Company's exercise of its
option to have this Section 8.03 applied to the outstanding Notes (in whole and
not in part), (i) the Company shall be released from its obligations under
Section 5.01(c) and (d), Sections 4.05 through 4.20, inclusive, and any covenant
added to this Indenture subsequent to the Issue Date pursuant to Section 9.01
hereof, (ii) the occurrence of any event specified in Section 6.01(c) or Section
6.01(d) hereof, with respect to any of Section 5.01(c) and (d), Sections 4.05
through 4.20, inclusive, and any covenant added to this Indenture subsequent to
the Issue Date pursuant to Section 9.01 hereof, shall be deemed not to be or
result in an Event of Default, in each case with respect to such Notes as
provided in this Section 8.03 on and after the date the conditions set forth in
Section 8.04 hereof are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Sections 6.01(c) and 6.01(d)
hereof), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document; but the remainder of this
Indenture and such Notes shall be unaffected thereby.
SECTION 8.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of Section 8.02 or Section
8.03 hereof to the outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to the
benefits of the Holders of such Notes, (i) money in an amount, or (ii) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(iii) a combination
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thereof, in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any installment of interest on such Notes on the respective
Stated Maturities thereof, in accordance with the terms of this Indenture and
such Notes.
(b) In the event of an election to have Section 8.02 hereof apply to the
outstanding Notes, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the date of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case (i) or (ii) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Notes will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Notes and will be subject to
Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not to
occur.
(c) In the event of an election to have Section 8.03 hereof apply to the
outstanding Notes, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee to the effect that the Holders of
such Notes will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
such Notes and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) No Default or Event of Default with respect to the outstanding Notes
shall have occurred and be continuing at the time of such deposit after giving
effect thereto ( other than a Default or Event of Default resulting from the
Incurrence of Indebtedness, all or a portion of the proceeds of which will be
used to defease the Notes pursuant to this Article VIII concurrently with such
Incurrence) or at any time on or prior to the 91st calendar day after the date
of such deposit.
(e) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming for the purpose of this clause (e) that all Notes are in default
within the meaning of such Act).
(f) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other material agreement or
instrument to which the Company is a party or by which it is bound.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
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SECTION 8.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; MISCELLANEOUS PROVISIONS. All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section
8.04 hereof in respect of the outstanding Notes shall 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 such 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 and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law. The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.04 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 outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Order any
money or U.S. Government Obligations held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to the outstanding Notes.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years; PROVIDED that the Trustee or such
Paying Agent before being required to make any payment may cause to be published
at the expense of the Company once in a newspaper of general circulation in the
City of New York or mail to each Holder entitled to such money at such Holder's
address (as set forth in the Note Register) notice that such money remains
unclaimed and that after a date specified therein (which shall be at least 30
days from the date of such publication or mailing) any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money in accordance with this Article VIII with respect to any Notes
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application then the
obligations under this Indenture and such Notes from which the Company has been
discharged or released pursuant to Sections 8.02 or 8.03 hereof shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
with respect to such Notes, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 8.05 hereof with
respect to such Notes in accordance with this Article VIII; PROVIDED that if the
Company makes any payment of principal of or any premium or interest on any such
Note following such reinstatement of its obligations, the
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Company shall be subrogated to the rights (if any) of the Holders of such Notes
to receive such payment from the money so held in trust.
ARTICLE IX.
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may, at any time, and from time to time, without notice to or consent of any
Holder of Notes, enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by such successor of the covenants of the Company herein and
contained in the Notes; or
(b) to add to the covenants of the Company, for the benefit of the Holders
of all of the Notes, or to surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Notes in addition to or in place of
Definitive Notes; or
(e) to evidence and provide for the acceptance of appointment hereunder of
a successor Xxxxxxx; or
(f) to secure the Notes; or
(g) to cure any ambiguity herein, or to correct or supplement any
provision hereof which may be inconsistent with any other provision hereof or to
add any other provisions with respect to matters or questions arising under this
Indenture; PROVIDED that such actions shall not adversely affect the interests
of the Holders of Notes in any material respect; or
(h) to comply with the requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.02. WITH CONSENT OF HOLDERS. With the consent of the Holders of
not less than a majority in principal amount of the outstanding Notes, by Act of
said Holders delivered to the Company and the Trustee, the Company and the
Trustee may enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders; PROVIDED that no such supplemental indenture shall, without the
consent of the Holder of each outstanding Note,
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(a) change the Stated Maturity of the principal of, or any installment of
interest on, any Note, or alter the redemption provisions thereof, or reduce the
principal amount thereof (or any premium, if any), or the interest thereon, that
would be due and payable upon Maturity thereof, or change the place of payment
where, or the coin or currency in which, any Note or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity thereof; or
(b) reduce the percentage in principal amount of the outstanding Notes,
the consent of whose Holders is required for any such supplemental indenture; or
(c) modify any of the provisions of Section 6.04 hereof, except to
increase any percentage set forth therein or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Note affected thereby; or
(d) subordinate in right of payment, or otherwise subordinate, the Notes
to any other Indebtedness; or
(e) modify any provision of this Indenture relating to the calculation of
Accreted Value; or
(f) modify any of the provisions of this Section 9.02, except to increase
any percentage set forth herein or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby.
It shall not be necessary for any Act of Holders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.04. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment or
supplement to this Indenture or the Notes shall comply with the Trust Indenture
Act as then in effect.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A consent to
an amendment, supplement or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of such Note or portion of such Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on such Note; PROVIDED that any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Note or portion of
such Note if the Trustee receives the notice of revocation at least one
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day prior to the date the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective pursuant to this
Article IX, it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 calendar
days after such record date.
SECTION 9.06. NOTATION ON OR EXCHANGE OF NOTES. If a supplemental
indenture changes the terms of a Note, the Trustee may require the Holder
thereof to deliver such Note to the Trustee. The Trustee may place an
appropriate notation on such Note regarding the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for such Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such amendment
or supplement.
SECTION 9.07. TRUSTEE TO EXECUTE SUPPLEMENTAL INDENTURES. The Trustee
shall execute any supplemental indenture authorized pursuant to this Article IX
if such supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but shall
not be required to, execute such supplemental indenture. In executing any
supplemental indenture, the Trustee shall be (subject to Section 7.01 hereof)
fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel, which shall not be at the expense of the Trustee, stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture.
SECTION 9.08. PAYMENTS FOR CONSENT. Neither the Company nor any of its
Affiliates shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of the Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all holders of the Notes that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
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ARTICLE X.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision shall control.
SECTION 10.02. NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows: if to the Company: FirstWorld Communications, Inc., 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000; if to the Trustee: The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Corporate Trust Trustee Administration.
The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication mailed to a Holder shall be sent to the Holder by first
class mail, postage prepaid, at the Holder's address as it appears in the Note
Register and shall be duly given if so sent within the time prescribed. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed to the Company, the Trustee or a Holder in the manner
provided above, it is duly given, whether or not the addressee receives it. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail to Holders, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company 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 10.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.19 hereof)
shall include: (a) a statement that the individual making such certificate or
opinion has read such covenant or condition; (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (c) a statement
that, in the opinion of such individual, such person has made such examination
or investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (d) a statement as to whether or not, in the opinion of such individual,
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such covenant or condition has been complied with; PROVIDED that, with respect
to matters of fact, an Opinion of Counsel may rely on an Officers' Certificate
or certificates of public officials.
SECTION 10.05. RULES BY TRUSTEE, PAYING AGENT AND NOTE REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders, and any
Note Registrar or Paying Agent may make reasonable rules for their functions;
PROVIDED that no such rule shall conflict with terms of this Indenture or the
Trust Indenture Act.
SECTION 10.06. PAYMENTS ON BUSINESS DAYS. If a payment hereunder is
scheduled to be made on a date that is not a Business Day, payment shall be made
on the next succeeding day that is a Business Day, and no interest shall accrue
with respect to that payment during the intervening period. If a Regular Record
Date is a date that is not a Business Day, such record date shall not be
affected.
SECTION 10.07. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
SECTION 10.08. NO RECOURSE AGAINST OTHERS. No controlling Person,
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes or this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation, solely by reason of its past, present or
future status as a controlling Person, director, officer, employee, incorporator
or stockholder of the Company. By accepting a Note, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such Note to such Holder.
SECTION 10.09. SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns whether so
expressed or not. All agreements of the Trustee in this Indenture shall bind
its successors and assigns whether so expressed or not.
SECTION 10.10. COUNTERPARTS. This Indenture may be executed in any number
of counterparts and by the parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 10.11. TABLE OF CONTENTS; HEADINGS. 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 intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 10.12. SEVERABILITY. In case any provision in this Indenture or
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.
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SECTION 10.13. FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
FIRSTWORLD COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Corporate
Finance and Development
Attest:
/s/ X. Xxxxxxxx Xxxxxxxx
-------------------------
X. Xxxxxxxx Xxxxxxxx
Assistant Secretary
[Seal]
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
Assistant Vice President
[Seal]
88
STATE OF CALIFORNIA )
COUNTY OF ) SS.:
On the 9th day of April, 1998, before me personally came Xxxxxx X. Xxxxxxx, to
me known, who, being by me duly sworn, did depose and say that he is Sr. Vice
President of FirstWorld Communications, Inc., one of the corporations described
in and which executed the foregoing instrument and that she signed her name
thereto by authority of the Board of Directors of said corporation.
/s/ Xxxxxx X. Xxxxx
--------------------
Notary Public
[Seal]
STATE OF NEW YORK )
COUNTY OF NEW YORK ) SS.:
On the 9th day of April, 1998, before me personally came Xxxxxxx Xxxxxxx, to me
known, who, being by me duly sworn, did depose and say that he is a Vice
President of The Bank of New York, one of the corporations described in and
which executed the foregoing instrument and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxx X. Xxxxxx
--------------------
Notary Public
[Seal]
89
