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CONVERGENT COMMUNICATIONS, INC.
as Issuer
and
NORWEST BANK COLORADO, N.A.
Trustee
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Indenture
Dated as of April 2, 1998
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$ 160,000,000 aggregate principal amount
13% Series A Senior Notes due 2008
13% Series B Senior Notes due 2008
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CONVERGENT COMMUNICATIONS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
AND INDENTURE, DATED AS OF APRIL 2, 1998
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1)......................... 607
(a)(2)......................... 607
(b)............................ 604, 608
Section 311............................... 101, 604
Section 312(a)............................ 701
(b)........................... 704
(c)........................... 704
Section 313............................... 101
(a)............................ 702
(c)............................ 601, 702, 703
Section 314(a)............................ 703, 1020
(d)............................ 1203, 1204
Section 315............................... 512
(a-d).......................... 602
(e)............................ 608
Section 316(c)............................ 104
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
Table of Contents
Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION . . . . . . . . . .1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . 26
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . 27
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . 29
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . 29
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . . . . . 30
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . 30
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . 30
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 113. Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . 31
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . . . 31
SECTION 115. Rules of Construction . . . . . . . . . . . . . . . . . . . . . 31
SECTION 116. Independence of Covenants . . . . . . . . . . . . . . . . . . . 32
SECTION 117. Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 118. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE II NOTE FORMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE III THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 301. Amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . . 34
SECTION 304. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . 38
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes . . . . . . . . . . 39
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . 40
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 41
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . 42
SECTION 311. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 42
SECTION 312. "CUSIP" and "ISIN" Numbers. . . . . . . . . . . . . . . . . . . 47
SECTION 313. Deposits of Monies. . . . . . . . . . . . . . . . . . . . . . . 47
i
ARTICLE IV SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . 48
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . 48
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . . 49
ARTICLE V REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . . . 51
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 53
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . 53
SECTION 505. Trustee May Enforce Claims Without Possession of Notes. . . . . 54
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . . 55
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . . 56
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . 56
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . 56
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . 57
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 57
SECTION 514. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . . 58
ARTICLE VI THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . 59
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes . . . 60
SECTION 604. May Hold Notes. . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . . . . . 61
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . . . . . 62
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . . 62
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . . . . . . 64
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . 65
SECTION 612. Certain Duties and Responsibilities . . . . . . . . . . . . . . 66
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 701. Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders. . . . . . . . . . . . . 67
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . 68
ii
SECTION 704. Communications of Holders . . . . . . . . . . . . . . . . . . . 69
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE. . . . . . . . 69
SECTION 801. Company May Consolidate, etc., Only on Certain Terms. . . . . . 69
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE IX AMENDMENTS; WAIVERS; SUPPLEMENTAL
INDENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 901. Amendments; Waivers and Supplemental Indentures
Without Consent of Holders . . . . . . . . . . . . . . . . . . 71
SECTION 902. Modification, Amendments and Supplemental
Indentures with Consent of Holders . . . . . . . . . . . . . . 72
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . . 73
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . 74
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . 74
SECTION 906. Reference in Notes to Supplemental Indentures . . . . . . . . . 74
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . 74
ARTICLE X COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1001. Payment of Principal, Premium, If Any, and Interest. . . . . . 75
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 75
SECTION 1003. Money for Notes Payments to Be Held in Trust . . . . . . . . . 75
SECTION 1004. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1005. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . 77
SECTION 1006. Maintenance of Properties. . . . . . . . . . . . . . . . . . . 78
SECTION 1007. Statement by Officers As to Default. . . . . . . . . . . . . . 78
SECTION 1008. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . 78
SECTION 1009. Limitation on Restricted Payments. . . . . . . . . . . . . . . 80
SECTION 1010. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries . . . . . . . . . . . . . . . 83
SECTION 1011. Limitation on Transactions with Affiliates . . . . . . . . . . 84
SECTION 1012. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1013. Limitations on Issuances of Guarantees of
Indebtedness by Restricted Subsidiaries. . . . . . . . . . . . 85
SECTION 1014. Change of Control. . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1015. Disposition of Proceeds of Asset Sales . . . . . . . . . . . . 87
SECTION 1016. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries . . . . . . . . 90
SECTION 1017. Designations of Unrestricted Subsidiaries. . . . . . . . . . . 91
SECTION 1018. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . 93
SECTION 1019. Business of the Company. . . . . . . . . . . . . . . . . . . . 93
SECTION 1020. Provision of Financial Statements and Reports. . . . . . . . . 93
iii
SECTION 1021. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . 94
SECTION 1022. Limitations on Status as Investment Company. . . . . . . . . . 94
SECTION 1023. Collateral Account.. . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE XI REDEMPTION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1101. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1102. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1103. Applicability of Article . . . . . . . . . . . . . . . . . . . 96
SECTION 1104. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . 96
SECTION 1105. Selection by Trustee of Notes to Be Redeemed . . . . . . . . . 96
SECTION 1106. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 97
SECTION 1107. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 97
SECTION 1108. Notes Payable on Redemption Date . . . . . . . . . . . . . . . 98
SECTION 1109. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . 98
ARTICLE XII COLLATERAL AND SECURITY . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 1201. Security Agreement . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 1202. Recording and Opinions . . . . . . . . . . . . . . . . . . . . 99
SECTION 1203. Release of Collateral. . . . . . . . . . . . . . . . . . . . .100
SECTION 1204. Certificates of the Company. . . . . . . . . . . . . . . . . .101
SECTION 1205. Authorization of Actions to be Taken by the
Trustee Under the Deposit Agreement. . . . . . . . . . . . . .101
SECTION 1206. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents . . . . . . . . . . . . . . . .102
SECTION 1207. Termination of Security Interest . . . . . . . . . . . . . . .102
ARTICLE XIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . . .102
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . .102
SECTION 1302. Legal Defeasance and Discharge . . . . . . . . . . . . . . . .102
SECTION 1303. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . .103
SECTION 1304. Conditions to Legal Defeasance or Covenant Defeasance. . . . .103
SECTION 1305. Deposited Money and Government Securities to Be
Held in Trust; Other Miscellaneous Provisions. . . . . . . . .105
SECTION 1306. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . .106
iv
ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . .106
SECTION 1401. Rules by Trustee and Agents. . . . . . . . . . . . . . . . . .107
SECTION 1402. No Adverse Interpretation of Other Agreements. . . . . . . . .107
SECTION 1403. Further Instruments and Acts . . . . . . . . . . . . . . . . .107
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vii
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EXHIBITS
Exhibit A Form of Initial Note. . . . . . . . . . . . . . . . . . . . . . . .A-1
Exhibit B Form of Exchange Note . . . . . . . . . . . . . . . . . . . . . . .B-1
Exhibit C Form of Transfer Certificate for Transfer from U.S. Global
Note to Regulation S Temporary Global Note . . . . . . . . . . . .C-1
Exhibit D Form of Transfer Certificate for Transfer from Regulation S
Temporary Global Noteto U.S. Global Note. . . . . . . . . . . . . .D-1
Exhibit E Form of Transfer Certificate for Transfer from Global Note
or Transfer Restricted Security to Transfer Restricted
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E-1
Exhibit F Form of Certificate for Transfers of Regulation S Temporary Global
Note for Regulation S Permanent Global Note . . . . . . . . . . . .F-1
Exhibit G Form of Certificate for Transfers of Regulation S Temporary Global
Note for Regulation S Permanent Global Note . . . . . . . . . . . .G-1
Exhibit H Form of Certificate for Transfers of Regulation S Permanent Global
Note for Certificated Securities. . . . . . . . . . . . . . . . . .H-1
viii
INDENTURE, dated as of April 2, 1998, between CONVERGENT
COMMUNICATIONS, INC., a corporation duly organized and existing under the laws
of the State of Colorado (herein called the "COMPANY"), having its principal
office at 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, and
NORWEST BANK COLORADO, N.A., a national banking association, as Trustee (herein
called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its
13% Series A Senior Notes due 2008 (the "INITIAL NOTES"), and its 13% Series B
Senior Notes due 2008 (the "EXCHANGE NOTES" and, together with the Initial
Notes, 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.
Upon the issuance of the Exchange Notes, if any, or the effectiveness
of the Shelf Registration Statement (as defined herein), this Indenture shall be
subject to, and shall be governed by the provisions of, the Trust Indenture Act
that are required to be part of or deemed to be part of and to govern the
indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "CASH TRANSACTION" and
"SELF-LIQUIDATING PAPER," as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date hereof; and
(4) 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.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by such Person and not incurred in connection with, or in
anticipation of, such Person becoming a Restricted Subsidiary or such Asset
Acquisition; PROVIDED that Indebtedness of such Person which is redeemed,
defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such Asset Acquisition shall not constitute Acquired Indebtedness.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"AFFILIATE" of any specified Person means any other Person which,
directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"AFFILIATE TRANSACTION" has the meaning specified in Section 1011.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for security entitlements in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
2
"ASSET ACQUISITION" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Capital Stock of any other Person by the Company or any Restricted Subsidiary,
in either case pursuant to which such Person shall (a) become a Restricted
Subsidiary or (b) shall be merged with or into the Company or any Restricted
Subsidiary or (ii) any acquisition by the Company or any Restricted Subsidiary
of the assets of any Person which constitute substantially all of an operating
unit or line of business of such Person or which is otherwise outside of the
ordinary course of business.
"ASSET SALE" means any direct or indirect sale, conveyance, transfer
or lease (that has the effect of a disposition and is not for security purposes)
or other disposition (that is not for security purposes) to any Person other
than the Company or a Restricted Subsidiary, in one transaction or a series of
related transactions, of (i) the Capital Stock of any Restricted Subsidiary
(other than customary stock option programs), (ii) any assets of the Company or
any Restricted Subsidiary which constitute substantially all of an operating
unit or line of business of the Company and the Restricted Subsidiaries or
(iii) any other property or asset of the Company or any Restricted Subsidiary
outside of the ordinary course of business. For the purposes of this definition,
the term "Asset Sale" shall not include (i) any disposition of properties and
assets of the Company and/or the Restricted Subsidiaries that is governed under
Section 801 (ii) sales of property or equipment that have become worn out,
obsolete or damaged or otherwise unsuitable for use in connection with the
business of the Company or any Restricted Subsidiary, as the case may be,
(iii) for purposes of Section 1015, any sale, conveyance, transfer, lease or
other disposition of any property or asset, whether in one transaction or a
series of related transactions occurring within one year, involving assets with
a Fair Market Value not in excess of $1.0 million, (iv) a Restricted Payment
that is permitted by Section 1009 and (v) sales of Cash Equivalents.
"ASSET SALE OFFER" has the meaning specified in Section 1015.
"ASSET SALE OFFER PAYMENT DATE" has the meaning specified in Section
1015.
"ASSET SALE OFFER PURCHASE PRICE" has the meaning specified in Section
1015.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"AVERAGE LIFE TO STATED MATURITY" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum
3
of the products of (a) the number of years from such date to the date or
dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(b) the amount of each such principal payment by (ii) the sum of all such
principal payments; PROVIDED that, in the case of any Capitalized Lease
Obligation, all calculations hereunder shall give effect to any applicable
options to renew in favor of the Company or any Restricted Subsidiary.
"BANKRUPTCY LAW" means Title 11 of the United States Code, as amended,
or any similar United States Federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"BOARD" means the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board and to be in full force and effect on the date of such certification
and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law, regulation or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting and/or non-voting) of, such Person's capital stock, whether
outstanding on the Issue Date or issued after the Issue Date, and any and all
rights (other than any evidence of Indebtedness), warrants or options
exchangeable for or convertible into such capital stock.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any Person, any
obligation of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) any property (whether real, personal
or mixed, immovable or movable) that is required to be classified and accounted
for as a capitalized lease obligation under GAAP, and, for the purpose of the
Indenture, the amount of such obligation at any date shall be the capitalized
amount thereof at such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) any evidence of Indebtedness (with, for
purposes of Section 1015 only, a maturity of 365 days or less) issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States is pledged in support thereof or such Indebtedness constitutes a general
obligation of such country); (ii) deposits,
4
certificates of deposit or acceptances (with, for purposes of Section 1015
only, a maturity of 365 days or less) of any financial institution that is a
member of the Federal Reserve System, in each case having combined capital
and surplus and undivided profits (or any similar capital concept) of not
less than $500.0 million and whose senior unsecured debt is rated at least
"A-l" by S&P or "P-l" by Xxxxx'x; (iii) commercial paper with a maturity of
365 days or less issued by a corporation (other than an Affiliate of the
Company) organized under the laws of the United States or any State thereof
and rated at least "A-l" by S&P or "P-l" by Xxxxx'x; (iv) repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States Government maturing within 365 days from the date
of acquisition and (v) money market funds which invest substantially all of
their assets in securities described in the preceding clauses (i) through
(iv).
"CEDEL" has the meaning specified in Section 303.
"CHANGE OF CONTROL" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), excluding the Permitted Holders, is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership"of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total Voting Stock of the
Company; (b) prior to a Public Equity Offering or one or more sales of Common
Stock to a Strategic Equity Investor, any "person" or "group" (as such terms are
used in clause (a)) contemporaneously becomes the "beneficial owner" (as such
term is used in clause (a)), directly or indirectly, of Voting Stock of the
Company in an amount greater than the total Voting Stock of the Company
"beneficially owned" (as such term is used in clause (a)) by the Permitted
Holders; (c) the Company consolidates with, or merges with or into, another
person or sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any person, or any person consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is converted
into or exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of the Company is converted
into or exchanged for (1) Voting Stock (other than Disqualified Stock) of the
surviving or transferee corporation or its parent corporation and/or (2) cash,
securities and other property in an amount which could be paid by the Company as
a Restricted Payment under the Indenture and (ii) immediately after such
transaction no "person" or "group" (as such terms are used in clause (a)),
excluding Permitted Holders, is the "beneficial owner" (as such term is used in
clause (a)), directly or indirectly, of more than 50% of the total Voting Stock
of the surviving or transferee corporation or its parent corporation, as
applicable; or (d) during any consecutive two-year period, individuals who at
the beginning of such period constituted
5
the Board (together with any new directors whose election by the Board or
whose nomination for election by the stockholders of the Company was approved
by a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board then in office.
"CHANGE OF CONTROL DATE" has the meaning specified in Section 1014.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section 1014.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning specified in Section
1014.
"CHANGE OF CONTROL PURCHASE PRICE" has the meaning specified in
Section 1014.
"COLLATERAL" has the meaning specified in Section 1201.
"COLLATERAL ACCOUNT" has the meaning specified in Section 1201.
"COLLATERAL DOCUMENTS" has the meaning specified in Section 1201.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or any assistant treasurer,
and delivered to the Trustee.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interest or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of such Person's common stock whether
outstanding at the Issue Date, and includes, without limitation, all series and
classes of such common stock.
6
"CONSOLIDATED ADJUSTED NET INCOME" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary or non-recurring gains
or losses; (b) any net after-tax gains or losses attributable to asset
dispositions other than in the ordinary course of business; (c) the portion of
net income (or loss) of any Person (other than the Company or a Restricted
Subsidiary), including Unrestricted Subsidiaries, in which the Company or any
Restricted Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash dividends or distributions during such period;
(d) net income (but not loss) of any Person combined with the Company or any
Restricted Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination; (e) the net income of any Restricted
Subsidiary, to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary is not at the date of
determination permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Restricted Subsidiary or its
stockholders; (f) any gain or loss, net of taxes, realized upon the termination
of any employee benefit plan and (g) the cumulative effect of a change in
accounting principles (effected either through cumulative effect adjustment or a
retroactive application, in each case, in accordance with GAAP).
"CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED OPERATING CASH FLOW RATIO"
means, at any date of determination, the ratio of (i) the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries outstanding at the
date of determination as determined on a consolidated basis in accordance with
GAAP to (ii) the aggregate amount of Consolidated Operating Cash Flow for the
then most recent four full fiscal quarters for which consolidated financial
statements of the Company are available preceding the date of the transaction
giving rise to the need to calculate the Consolidated Indebtedness to
Consolidated Operating Cash Flow Ratio (such four fiscal quarter period being
referred to as the "Four Quarter Period").
"CONSOLIDATED INTEREST EXPENSE" of the Company means, for any period,
without duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation,
(i) amortization of debt discount; (ii) the net cost of Interest Rate Agreements
(including amortization of discounts); (iii) the interest portion of any
deferred payment obligation; (iv) accrued interest; (v) the consolidated amount
of any interest capitalized by the Company and (vi) amortization of debt
issuance costs, PLUS (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, EXCLUDING, HOWEVER, any amount of such
interest of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Consolidated Adjusted Net Income
pursuant to clause (e) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Consolidated Adjusted Net Income pursuant to clause (e) of
7
the definition thereof); PROVIDED that the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a PRO FORMA basis
and (A) bearing a floating interest rate shall be computed as if the rate in
effect on the date of computation had been the applicable rate for the entire
period and (B) which was not outstanding during the period for which the
computation is being made but which bears, at the option of the Company, a
fixed or floating rate of interest, shall be computed by applying, at the
option of the Company, either the fixed or the floating rate.
"CONSOLIDATED NET WORTH" means, with respect to any Person, the
consolidated stockholders' or partners' equity of such Person reflected on the
most recent financial statements of such Person, determined in accordance with
GAAP, less any amounts attributable to Disqualified Stock of such Person.
"CONSOLIDATED OPERATING CASH FLOW" means, with respect to any period,
the Consolidated Adjusted Net Income for such period (a) increased by (to the
extent included in computing Consolidated Adjusted Net Income) the sum of
(i) the Consolidated Tax Expense for such period (other than taxes attributable
to extraordinary or non-recurring gains or losses); (ii) Consolidated Interest
Expense for such period; (iii) depreciation of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; (iv) amortization of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP and
(v) any other non-cash charges that were deducted in computing Consolidated
Adjusted Net Income (excluding any non-cash charge which requires an accrual or
reserve for cash charges for any future period) of the Company and its
Restricted Subsidiaries for such period in accordance with GAAP and
(b) decreased by any non-cash gains that were included in computing Consolidated
Adjusted Net Income.
"CONSOLIDATED TAX EXPENSE" means, for any period, the provision for
Federal, state, provincial, local and foreign income taxes of the Company and
all Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATION" means with respect to the Company, the consolidation
of the accounts of the Restricted Subsidiaries with those of the Company, all in
accordance with GAAP; PROVIDED that "consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of the Company. The term "consolidated" has a correlative meaning to the
foregoing.
"CONTROL AGREEMENT" has the meaning specified in Section 1201.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the
8
Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000.
"COVENANT DEFEASANCE" has the meaning specified in Section 1303.
"CURRENCY AGREEMENTS" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed solely to protect against or manage exposure to
fluctuations in currency exchange rates.
"CUSTODIAN" has the meaning specified in Section 1201.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DESIGNATION" has the meaning specified in Section 1017.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"DIRECT PARTICIPANTS" means participating organizations in DTC,
including securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, including Euroclear and Cedel.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of transactions in respect of which the Board is required to deliver a
Board Resolution under this Indenture, a member of the Board who does not have
any material direct or indirect financial interest in or with respect to such
transaction or series of transactions.
"DISQUALIFIED STOCK" means, with respect to any Person, 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, matures or becomes mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or becomes exchangeable for Indebtedness at the option
of the holder thereof, or becomes redeemable at the option of the holder
thereof, in whole or in part, on or prior to the final maturity date of the
Notes; PROVIDED such Capital Stock shall only constitute Disqualified Stock to
the extent it so matures or becomes so redeemable or exchangeable on or prior to
the final maturity date of the Notes; PROVIDED, FURTHER, that any Capital Stock
that would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of
9
an "asset sale" or "change of control" occurring prior to the final maturity
date of the Notes shall not constitute Disqualified Stock if the "asset sale"
or "change of control" provisions applicable to such Capital Stock are no
more favorable to the holders of such Capital Stock than the provisions
contained in Sections 1014 and 1015 and such Capital Stock specifically
provides that such Person will not repurchase or redeem any such stock
pursuant to such provision prior to the Company's repurchase of such Notes as
are required to be repurchased pursuant to Sections 1014 and 1015 and at all
times subject to Section 1009.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"ELIGIBLE WORKING CAPITAL BORROWING BASE" means an amount equal to the
sum of (i) 50% of the net inventory of the Company and (ii) 85% of the net
accounts receivable of the Company.
"EUROCLEAR" has the meaning specified in Section 303.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCESS PROCEEDS" has the meaning specified in Section 1015.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"EXCHANGE NOTES" has the meaning specified in the recitals to this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Notes Registration Rights Agreement and this Indenture.
"EXCHANGE OFFER" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Notes Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Exchange Offer
Registration Statement as defined in the Notes Registration Rights Agreement.
10
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price that could be negotiated in an arms-length free market transaction,
for cash, between a willing seller and a willing buyer, neither of whom is
under pressure or compulsion to complete the transaction. Unless otherwise
specified in the Indenture, Fair Market Value shall be determined by the
Board acting in good faith and shall be evidenced by a Board Resolution.
"40-DAY DISTRIBUTION COMPLIANCE PERIOD" means the 40-day period
commencing on the day after the later of an offering of the Notes by the
initial purchasers pursuant to the Purchase Agreement and the original Issue
Date pursuant to Regulation S of the Securities Act.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means
generally accepted accounting principles in the United States in effect on
the Issue Date, consistently applied.
"GLOBAL NOTES" has the meaning specified in Section 303.
"GLOBAL NOTES LEGEND" means the legend on EXHIBIT A and EXHIBIT B
to be placed on all Global Notes issued under this Indenture.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any
way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit.
"GUARANTEED INDEBTEDNESS" has the meaning specified in Section 1013.
"HOLDER" means the Person in whose name a Note is registered in the
Note Register.
"INCUR" or "incur" means, with respect to any Indebtedness, to
create, issue, assume, guarantee or in any manner become directly or
indirectly liable for the payment of, or otherwise incur such Indebtedness;
PROVIDED that neither the accrual of interest nor the accretion of original
issue discount shall be considered an Incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person, without
duplication, (a) all liabilities, contingent or otherwise, of such Person:
(i) for borrowed money (including overdrafts); (ii) in connection with any
letters of credit and acceptances issued
11
under letter of credit facilities, acceptance facilities or other similar
facilities; (iii) evidenced by bonds, notes, debentures or other similar
instruments; (iv) for the deferred purchase price of property or services or
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person; or (v) for
Capitalized Lease Obligations; (b) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements; (c) all
indebtedness referred to in (but not excluded from) the preceding clauses of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or with
respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness (the amount of such
obligation being deemed to be the lesser of the value of such property or
asset or the amount of the obligation so secured); (d) all guarantees by such
Person of Indebtedness referred to in this definition of any other Person and
(e) all Disqualified Stock of such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends. The amount of Indebtedness of any Person at any date shall
be the outstanding balance at such date (or, in the case of a revolving
credit or other similar facility, the total amount of funds outstanding on
the date of determination) 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 equals the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount with respect to
such Indebtedness at the time of its issuance as determined in conformity
with GAAP. For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Stock which 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 purchased on any date on which Indebtedness shall be
required to be determined pursuant to the Indenture, and if such price is
based upon, or measured by, the fair market value of such Disqualified Stock,
such fair market value shall be determined in good faith by the board of
directors of the issuer of such Disqualified Stock. Notwithstanding the
foregoing, trade accounts and accrued liabilities arising in the ordinary
course of business and any liability for Federal, state or local taxes or
other taxes owed by such Person will not be considered Indebtedness for
purposes of this definition.
"INDENTURE" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INDEPENDENT FINANCIAL ADVISOR" means a United States investment
banking, consulting or accounting firm of national standing in the United
States (i) which does not, and whose directors, officers and employees or
Affiliates do not, have a material direct or indirect financial interest in
the Company or any of its Subsidiaries or Affiliates
12
and (ii) which, in the judgment of the Board, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"INDIRECT PARTICIPANTS" means, in relation to DTC, entities other
than Direct Participants that have access to DTC's book entry system by
clearing through or maintaining a direct or indirect, custodial relationship
with a Direct Participant.
"INITIAL NOTES" has the meaning specified in the recitals to this
Indenture.
"INTEREST PAYMENT DATE", when used with respect to any Note, means
the Stated Maturity of an installment of interest on such Note.
"INTEREST RATE AGREEMENTS" means any interest rate protection
agreements and other types of interest rate hedging agreements or
arrangements (including, without limitation, interest rate swaps, caps,
floors, collars and other similar agreements) designed solely to protect the
Company or any Restricted Subsidiary against fluctuations in interest rates
in respect of Indebtedness of the Company or any Restricted Subsidiary.
"INTEREST RATE OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount and shall include without limitation, interest
rate swaps, caps, floors, collars, forward interest rate agreements and
similar agreements.
"INVESTMENT" means, with respect to any Person, any advance, loan,
account receivable (other than an account receivable arising in the ordinary
course of business), or other extension of credit (including, without
limitation, by means of any guarantee) or any capital contribution to (by
means of transfers of property to others, payments for property or services
for the account or use of others, or otherwise), or any purchase or ownership
of any stocks, bonds, notes, debentures or other securities of, any other
Person. Notwithstanding the foregoing, in no event shall any issuance of
Capital Stock (other than Disqualified Stock) of the Company in exchange for
Capital Stock, property or assets of another Person or any redemption or
repurchase of the Notes or other Indebtedness of the Company or any
Restricted Subsidiary constitute an Investment by the Company in such other
Person.
"INVESTMENT COMPANY ACT" has the meaning specified in Section 1022.
"ISSUE DATE" means the original date of issuance of the Notes.
"LEGAL DEFEASANCE" has the meaning specified in Section 1302.
13
"LIEN" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any
property of any kind. A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"MARKET CAPITALIZATION" of any Person means, as of any day of
determination, the average Closing Price of such Person's common stock over
the 20 consecutive trading days immediately preceding such day. "CLOSING
PRICE" on any trading day with respect to the per share price of any shares
of common 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 common 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 The Nasdaq National Market, 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.
"MATERIAL RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of
the Company, which, at any date of determination, is a "Significant
Subsidiary" (as that term is defined in Regulation S-X issued under the
Securities Act).
"MATURITY" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"MOODY'S" means Xxxxx'x Investors Service.
"NET CASH PROCEEDS" means, (a) with respect to any asset sale, the
proceeds thereof in the form of cash (including assumed liabilities and other
items deemed to be cash under the proviso in paragraph (a) of Section 1015)
or Cash Equivalents including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary) net of (i) brokerage commissions and
other fees and expenses (including fees and expenses of legal counsel,
accountants, consultants and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale,
(iii) amounts required to be paid to any Person (other than the Company or
any Restricted Subsidiary) owning a beneficial interest in or having a Lien
on the assets subject to the Asset Sale and
14
(iv) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve required in accordance with GAAP
against any liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an officers' certificate delivered to the Trustee,
and (b) with respect to any issuance or sale of Capital Stock or options,
warrants or rights to purchase Capital Stock, or debt securities or
Disqualified Stock that have been converted into or exchanged for Qualified
Capital Stock, as referred to under Section 1009, the proceeds of such
issuance or sale in the form of cash or Cash Equivalents, including payments
in respect of deferred payment obligations when received in the form of, or
stock or other assets when disposed for, cash or Cash Equivalents (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary, net of attorney's fees, accountant's
fees and brokerage, consultation, underwriting and other fees and expenses
actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings
specified in Section 305.
"NOTES" has the meaning specified in the recital to this Indenture.
"NOTES REGISTRATION RIGHTS AGREEMENT" means the Notes Registration
Rights Agreement dated as of April 2, 1998, among the Company and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bear,
Xxxxxxx & Co. Inc. and BT Alex. Xxxxx Incorporated.
"OFFICERS' CERTIFICATE" means a certificate signed by the chief
executive officer, the president, the chief financial officer or any vice
president, and by the treasurer, any assistant treasurer, the secretary or
any assistant secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of legal counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be reasonably acceptable to the Trustee.
"OUTSTANDING", when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
15
(ii) Notes, or portions thereof, for whose payment or repayment at
the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Notes;
(iii) Notes, except to the extent provided in Sections 1302 and 1303,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article XIII; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a BONA FIDE purchaser in whose hands
such Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder and, for the
purpose of making the calculations required by TIA Section 313, Notes owned
by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes which
a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any
Affiliate of the Company or such other obligor.
"PARTICIPANT" is defined to mean, with respect to the Depositary,
Persons who have accounts with the Depositary.
"PAYING AGENT" means any Person (including the Company acting as
Paying Agent) authorized by the Company to make payments in respect of any
Notes on behalf of the Company.
"PERMITTED CREDIT FACILITY" means any senior commercial term loan
and/or revolving credit facility or any letter of credit facility entered
into principally with commercial banks and/or other financial institutions
typically party to commercial loan agreements.
16
"PERMITTED HOLDERS" mean (i) Xxxx X. Xxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxx and their spouses, issue or other members of their immediate
families (the "Xxxxx Family," the "Xxxxx Family" and the "Xxxxx Family,"
respectively), (ii) trusts or other entities created for the benefit of any
member of the Xxxxx Family, the Xxxxx Family or the Xxxxx Family,
(iii) entities controlled by any of the Xxxxx Family, the Xxxxx Family or the
Xxxxx Family, and (iv) in the event of the death of any member of the Xxxxx
Family, the Xxxxx Family or the Xxxxx Family, the heirs or testamentary
legatees of such member of the Xxxxx Family, the Xxxxx Family or the Xxxxx
Family.
"PERMITTED INDEBTEDNESS" means the following Indebtedness (each of
which shall be given independent effect):
(a) Indebtedness under the Notes and the Indenture;
(b) Indebtedness of the Company and/or any Restricted
Subsidiary outstanding on the Issue Date;
(c) (i) Indebtedness of the Company issued to and held by a
Wholly Owned Restricted Subsidiary and (ii) Indebtedness of a
Restricted Subsidiary issued to and held by the Company or a Wholly
Owned Restricted Subsidiary; PROVIDED, HOWEVER, that (x) any
subsequent issuance or transfer of any Capital Stock that results
in any such Wholly Owned Restricted Subsidiary ceasing to be a
Wholly Owned Restricted Subsidiary, (y) any Designation of such
Wholly Owned Restricted Subsidiary as an Unrestricted Subsidiary or
(z) any subsequent transfer of such Indebtedness (other than to the
Company or a Wholly Owned Restricted Subsidiary) will be deemed, in
each case, to constitute the issuance of such Indebtedness by the
Company or such Indebtedness by such Restricted Subsidiary;
(d) Interest Rate Obligations of the Company and/or any
Restricted Subsidiary relating to Indebtedness of the Company
and/or such Restricted Subsidiary, as the case may be (which
Indebtedness (x) bears interest at fluctuating interest rates and
(y) is otherwise permitted to be incurred under Section 1008), but
only to the extent that the notional principal amount of such
Interest Rate Obligations does not exceed the principal amount of
the Indebtedness (and/or Indebtedness subject to commitments) to
which such Interest Rate Obligations relate;
(e) Indebtedness of the Company and/or any Restricted
Subsidiary in respect of performance bonds of the Company or any
Restricted Subsidiary or surety bonds provided by the Company or
any Restricted Subsidiary, in each case incurred in the ordinary
course of business;
17
(f) Indebtedness of the Company and/or any Restricted
Subsidiary to the extent it represents a replacement, renewal,
refinancing or extension (a "Refinancing") of outstanding
Indebtedness of the Company and/or of any Restricted Subsidiary
incurred or outstanding pursuant to clause (b), (g) or (h) of this
definition or the proviso in the first paragraph of Section 1008
PROVIDED that (1) Indebtedness of the Company may not be Refinanced
to such extent under this clause (f) with Indebtedness of any
Restricted Subsidiary and (2) any such Refinancing shall only be
permitted under this clause (f) to the extent that (x) it does not
result in a lower Average Life to Stated Maturity of such
Indebtedness as compared with the Indebtedness being Refinanced,
and (y) it does not exceed the sum of the principal amount (or, if
such Indebtedness provides for a lesser amount to be due and
payable upon a declaration of acceleration thereof, an amount no
greater than such lesser amount) of the Indebtedness being
Refinanced plus the amount of accrued interest thereon and the
amount of any reasonably determined prepayment premium necessary to
accomplish such Refinancing and such reasonable fees and expenses
incurred in connection therewith;
(g) Indebtedness of the Company and/or any Restricted
Subsidiary incurred under one or more Permitted Credit Facilities,
such that the aggregate principal amount of the Indebtedness of the
Company and the Restricted Subsidiaries under Permitted Credit
Facilities does not exceed the greater of (i) $50.0 million at any
time outstanding and (ii) the Eligible Working Capital Borrowing
Base;
(h) Indebtedness of the Company not to exceed, at any one time
outstanding, two times (A) the Net Cash Proceeds received by the
Company after the Issue Date as a capital contribution or from the
issuance and sale of its Qualified Capital Stock to a Person that
is not a Subsidiary of the Company, to the extent such Net Cash
Proceeds have not been used pursuant to clause (a) (3) (B) or
clauses (b)(ii) and (iii) of Section 1009 to make a Restricted
Payment or for the redemption, repurchase or other acquisition of
Indebtedness and (B) 80% of the Fair Market Value of property
(other than cash and Cash Equivalents) received by the Company
after the Issue Date as a contribution of capital or from the sale
of its Qualified Capital Stock to a Person that is not a Subsidiary
of the Company, to the extent such capital contribution or sale of
Qualified Capital Stock has not been used pursuant to
clause (a) (3) (B) of Section 1009 to make a Restricted Payment;
PROVIDED that such Indebtedness does not mature prior to the Stated
Maturity of the Notes and (y) has an Average Life to Stated Maturity
longer than the Notes;
(i) Purchase Money Indebtedness;
(j) Indebtedness evidenced by letters of credit issued in the
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ordinary course of business of the Company and/or any Restricted
Subsidiary to secure workers' compensation and other insurance
coverages; and
(k) Indebtedness of the Company and/or any Restricted
Subsidiary in addition to that permitted to be incurred pursuant to
clauses (a) through (j) above in an aggregate principal amount not
in excess of $5.0 million outstanding at any one time.
"PERMITTED INVESTMENTS" means (a) Cash Equivalents; (b) Investments
in prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits;
(c) Interest Rate Obligations incurred in compliance with Section 1008
(d) Investments in the Company or any Wholly Owned Restricted Subsidiary;
(e) Investments made in any Person as a result of which such Person becomes a
Wholly Owned Restricted Subsidiary or is merged into, or transfers
substantially all of its assets to the Company or a Wholly Owned Restricted
Subsidiary; (f) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made in compliance with Section 1015;
(g) Investments received as a part of the settlement of litigation or in
satisfaction of extensions of credit to any Person otherwise permitted under
the Indenture pursuant to the reorganization, bankruptcy or liquidation of
such Person or a good faith settlement of debts with such Person; and
(h) loans or advances to officers or employees of the Company or any
Restricted Subsidiary made in the ordinary course of business of the Company
or such Restricted Subsidiary to pay business related travel expenses or
reasonable relocation costs of such officers or employees in connection with
their employment by the Company or such Restricted Subsidiary.
"PERMITTED LIENS" means the following types of Liens:
(a) Liens existing as of the Issue Date of the Notes;
(b) Liens on any property or assets of a Subsidiary granted in
favor of the Company or any Restricted Subsidiary;
(c) Liens securing the Notes;
(d) any interest or title of a lessor under any Capitalized
Lease Obligations or of a seller under any Purchase Money
Indebtedness permitted by the Indenture;
(e) Liens securing Indebtedness incurred under clause (g) or
(i) of the definition of "Permitted Indebtedness;"
(f) statutory Liens or landlord's and carrier's, warehouseman's,
19
mechanic's, supplier's materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to
amounts not yet delinquent or 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;
(g) Liens for taxes, assessments, government charges or claims
that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve or
other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor;
(h) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance bonds and other
obligations of a like nature (including, without limitation,
indefeasible rights to use) incurred in the ordinary course of
business (other than contracts for the payment of money);
(i) easements, servitudes, rights-of-way, restrictions
(including, without limitation, zoning restrictions) and other
similar charges or encumbrances not interfering in any material
respect with the business of the Company or any Subsidiary incurred
in the ordinary course of business;
(j) Liens arising by reason of any judgment, decree or order
of any court so long as such Lien is adequately bonded and any
appropriate legal proceedings that may have been duly initiated for
the review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings may
be initiated shall not have expired;
(k) Liens securing Acquired Indebtedness created prior to (and
not in connection with or in contemplation of) the incurrence of
such Indebtedness by the Company or any Subsidiary; PROVIDED that
such Lien does not extend to any property or assets of the Company
or any Subsidiary other than the assets acquired in connection with
the incurrence of such Acquired Indebtedness;
(l) Liens securing Interest Rate Agreements or Currency
Agreements permitted to be incurred pursuant to clause (e) of the
definition of "Permitted Indebtedness" or any collateral for the
Indebtedness to which such Interest Rate Agreements or Currency
Agreements relate;
(m) Liens arising from purchase money mortgages and purchase
money security interests; PROVIDED that the related Indebtedness
shall not be secured by any property or assets of the Company or
any Subsidiary other than the
20
property and assets so acquired;
(n Liens with respect to assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company or a Restricted
Subsidiary to secure Indebtedness owing to the Company or such
Restricted Subsidiary;
(o pledges and deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of statutory obligations;
(p Liens with respect to the assets of any entity which
becomes the successor to the Company as provided under Section 801;
and
(q any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (p);
PROVIDED that any such extension, renewal or replacement shall be no
more restrictive in any material respect than the Lien so extended,
renewed or replaced and shall not extend to any additional property or
assets.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT" means the office or agency maintained by the
Company where the principal of (and premium, if any, on) and interest on the
Notes are payable as specified in Section 1002.
"PREDECESSOR NOTE" of any particular Note, means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 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" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated)
of such Person's preferred or preference stock whether now outstanding, or
issued after the Issue Date, and including, without limitation, all classes
and series of preferred or preference stock of such Person.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of
Common Stock of the Company registered with the Commission under the
Securities Act.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
March
21
26, 1998, among the Company and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Bear, Xxxxxxx & Co. Inc. and BT Alex. Xxxxx
Incorporated, with respect to the Units.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company or
any Restricted Subsidiaries incurred for the purpose of financing all or any
part of the cost of, the construction, expansion, installation, acquisition
or improvement by the Company or any Restricted Subsidiary of the Company of
any Telecommunications Assets or not less than 66 2/3 percent of the
outstanding Voting Stock of a Person that becomes a Restricted Subsidiary the
assets of which consist primarily of Telecommunications Assets; PROVIDED,
that the Net Cash Proceeds from the issuance of such Indebtedness (or the
amount of such Indebtedness constituting Capitalized Lease Obligations) does
not exceed, as of the date of incurrence of such Indebtedness, 100 percent of
the lesser of cost or Fair Market Value of such Telecommunications Assets.
"QIB" means a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of
Rule 144A under the Securities Act.
"QUALIFIED CAPITAL STOCK" of any Person means any and all Capital
Stock of such Person other than Disqualified Stock.
"REDEMPTION DATE" means, with respect to any Note to be redeemed,
the date fixed by the Company for such redemption pursuant to this Indenture
and the Notes.
"REDEMPTION PRICE" means, with respect to any Note to be redeemed,
the price fixed for such redemption pursuant to the terms of this Indenture
and the Notes.
"REFERENCE PERIOD" has the meaning specified in Section 1008.
"REFINANCING" has the meaning specified in clause (f) of the
definition of "Permitted Indebtedness."
"REGISTRATION STATEMENT" means the Registration Statement as
defined in the Notes Registration Rights Agreement.
"REGULAR RECORD DATE" has the meaning specified in Section 301.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S PERMANENT GLOBAL NOTE" has the meaning specified in
Section 311(a)(viii).
"REGULATION S TEMPORARY GLOBAL NOTE" has the meaning specified in
22
Section 303.
"REPLACEMENT ASSETS" has the meaning specified in Section 1015.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any vice president, the secretary or any assistant secretary, the treasurer
or any assistant treasurer, any trust officer or assistant trust officer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers, and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"RESTRICTED PAYMENT" has the meaning specified in Section 1009.
"RESTRICTED SECURITIES LEGEND" means the legend set forth in
EXHIBIT A to be placed on all Initial Notes issued under this Indenture that
are Transfer Restricted Securities.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that
has not been designated by the Board, by a Board Resolution delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with
Section 1017. Any such Designation may be revoked by a Board Resolution
delivered to the Trustee, subject to the provisions of such covenant.
"RESTRICTED SUBSIDIARY INDEBTEDNESS" means Indebtedness of any
Restricted Subsidiary (i) which is not subordinated to any other Indebtedness
of such Restricted Subsidiary and (ii) in respect of which the Company is not
also obligated (by means of a guarantee or otherwise) other than, in the case
of this clause (ii), Indebtedness under any Permitted Credit Facilities.
"REVOCATION" has the meaning set forth in Section 1017.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Ratings Corporation.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" has the meaning specified in Section 1201.
"SEPARABILITY DATE" means the earliest of: (i) the date that is six
months after the initial sale of the Units; (ii) the date on which a
registration statement with respect to a registered Exchange Offer for the
Notes is declared effective under the
23
Securities Act; (iii) the occurrence of an Exercise Event (as defined in the
Warrant Agreement); (iv) the occurrence of an Event of Default; or (v) such
earlier date as determined by Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Notes Registration Rights Agreement.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Notes means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is
due and payable, and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
"STRATEGIC EQUITY INVESTOR" means any Person engaged principally in
one or more Telecommunications Businesses with a Market Capitalization or
Consolidated Net Worth of at least $1.0 billion.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Company
or any Restricted Subsidiary which is expressly subordinated in right of
payment to the Notes.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation
of which the outstanding Capital Stock having at least a majority of the
votes entitled to be cast in the election of directors shall at the time be
owned, directly or indirectly, by such Person, or (ii) any other Person of
which at least a majority of voting interest is at the time, directly or
indirectly, owned by such Person.
"SUBSIDIARY GUARANTEE" has the meaning specified in Section 1013.
"TELECOMMUNICATIONS ASSETS" means, with respect to any Person, 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, or providing services relating to the transmission of voice,
video or data through customer or company owned or leased transmission
facilities, including without limitation frame relay, ATM, Internet access,
cellular services, paging services, voice messaging services, local and long
distance services, (ii) constructing, planning, designing, creating,
installing, managing, consulting with respect to developing, leasing,
financing, selling or marketing data and voice equipment, computer hardware
and software, networking hardware and
24
software and other similar devices including without limitation servers,
routers, data switches, personal computers, key systems and handsets, and
(iii) consulting on advisory services relating to either of (i) or (ii),
including without limitation services relating to the design, implementation
and maintenance of web applications, web hosting and Internet access or (iv)
evaluating, participating or pursuing any other activity or opportunity that
is primarily related to those identified in (i), (ii) or (iii) above;
PROVIDED that the determination of what constitutes a Telecommunications
Business shall be made in good faith by the Board.
"TRANSACTION DATE" has the meaning specified in Section 1008.
"TRANSFER RESTRICTED SECURITIES" means each Note, until the first
to occur of the following: (i) such Note is exchanged in the Exchange Offer
for an Exchange Note and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the
Securities Act, (ii) such Note has been transferred pursuant to the Shelf
Registration Statement, (iii) such Note is disposed of by a broker-dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained
therein), or (iv) such Note is distributed to the public pursuant to Rule 144
under the Securities Act or is salable pursuant to Rule 144(k) under the
Securities Act.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"TRUSTEE" shall mean or include each Person who is then a Trustee hereunder.
"UNIT LEGEND" means the legend set forth in EXHIBIT A to be placed
on all Initial Notes issued under this Indenture prior to the Separability
Date.
"UNITS" shall mean the units issued and sold pursuant to the
Purchase Agreement, consisting of the Notes and warrants entitling the holder
to purchase shares of Common Stock.
"UNITED STATES" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 1017. Any such
designation may be revoked by a Board Resolution delivered to the Trustee,
subject to the provisions of Section 1017.
"US DESIGNATION AMOUNT" has the meaning specified in Section 1017.
25
"U.S. GLOBAL NOTE" has the meaning specified in Section 303.
"U.S. GOVERNMENT SECURITIES" means direct obligations of the United
States of America, or obligations guaranteed by the United States of America,
for the payment of which obligations or guarantee its full faith and credit
is pledged.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"VOTING STOCK" means, with respect to any Person, the Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors or other members of the governing body of such Person.
"WARRANT AGREEMENT" means the Warrant Agreement dated as of April
2, 1998, by and between the Company and American Stock Transfer & Trust
Company, as Warrant Agent.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary in which all of the outstanding Capital Stock is owned by
the Company or another Wholly Owned Restricted Subsidiary. For the
purposes of this definition, any directors' qualifying shares or
investments by foreign nationals mandated by applicable law shall be
disregarded in determining the ownership of a Restricted Subsidiary.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and
an Opinion of Counsel to the effect that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of any such documents is specifically required by
any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with
a covenant or condition provided for in this Indenture (other than
pursuant to Section 1007) shall include:
(1 a statement to the effect that each individual or firm
signing such
26
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2 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;
(3 a statement to the effect that, in the opinion of each
such individual or such firm, he or she has or they have made such
examination or investigation as is necessary to enable him, her or
them to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4 a statement as to whether, in the opinion of each such
individual or such firm, such covenant or condition has been complied
with.
SECTION 103. 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 or her 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, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
27
(a Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Notes may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in
writing. 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 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 a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of 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.
(c The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note
Register.
(d If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to Board
Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall
have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such
Board Resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Notes shall be computed as of such record date; PROVIDED that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than eleven months
28
after the record date.
(e Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind
every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1 the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Escrow Services Administration; or
(2 the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office, for the attention of the Chief Financial Officer,
specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Notes by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at
its address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
29
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical
to mail notice of any event to Holders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Authenticating
Agent, any Paying Agent, any Notes Registrar and their successors hereunder
and the Holders any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of
the Shelf
30
Registration Statement or the consummation of the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date or Stated Maturity or
maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity or maturity; PROVIDED that no interest
shall accrue for the period from and after such Interest Payment Date, Stated
Maturity or maturity, as the case may be.
SECTION 113. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or this Indenture, as applicable, or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Notes.
SECTION 115. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(c all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d the words "herein" "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e all references to "$" or "dollars" refer to the lawful
currency of the United States of America; and
(f the words "include," "included" and "including" as used
herein are deemed in each case to be followed by the phrase "without
limitation."
SECTION 116. INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
SECTION 117. EXHIBITS.
All exhibits attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
SECTION 118. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE II
NOTE FORMS
SECTION 201. FORMS GENERALLY.
The Initial Notes and the Trustee's certificate of authentication
thereon
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shall be substantially in the form of EXHIBIT A hereto. The Exchange Notes
and the Trustee's certificate of authentication thereon shall be
substantially in the form of EXHIBIT B hereto. The Notes may have
notations, legends or endorsements or such letters, numbers or other marks of
identification required to comply with any law, stock exchange rule, rules of
the Depositary or any clearing agency or usage or as may, consistently
herewith, be determined by the officer executing such Notes, as evidenced by
their execution 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. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note.
The definitive Notes shall be printed, typewritten, photocopied,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its issuance and shall show the
date of its authentication.
ARTICLE III
THE NOTES
SECTION 301. AMOUNT.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $160,000,000 in aggregate principal
amount of Notes, except for Notes authenticated and delivered upon registration
or transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Section 304, 305, 306, 311, 906, 1014 or 1015 or pursuant to an Exchange Offer.
The final Stated Maturity of the Notes shall be April 1, 2008.
Interest on the Notes shall accrue at the rate of 13% per annum from the Issue
Date or from the most recent Interest Payment Date to which interest has been
paid, as the case may be, and shall be payable semi-annually thereafter on each
April 1 and October 1, in each year, commencing October 1, 1998, until the
principal amount thereof is paid in full and to the Person in whose name the
Note (or any predecessor Note) is registered at the close of business on the
March 15 or September 15, respectively, immediately preceding such Interest
Payment Date (each, a "REGULAR RECORD DATE"). Interest will be computed on the
Notes as specified in Section 310 hereof. Interest on any overdue principal,
interest (to the extent lawful) or premium, if any, shall be payable on demand.
33
The principal of (and premium, if any) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; PROVIDED, HOWEVER, that, at the option of the
Company, interest may be paid (a) by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register or (b) by
wire transfer to an account maintained by the payee in the United States.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1014 and in the event of certain Asset Sales pursuant to Section 1015.
The Notes shall be redeemable as provided in Article XI.
The Notes shall be subject to legal defeasance and/or covenant
defeasance as provided in Article XIII.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT A hereto. The
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT B hereto.
The terms and provisions contained in the Notes annexed hereto as
EXHIBIT A and EXHIBIT B shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, 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.
(b The Initial Notes are being offered and sold by the Company
pursuant to the Purchase Agreement.
The Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act ("RULE 144A") to QIBs, as provided in the Purchase Agreement,
will be issued in denominations of $1,000 and integral multiples thereof on the
Issue Date initially
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in the form of one or more permanent global Notes in definitive, fully
registered form without interest coupons with the Global Notes Legend and the
Restricted Securities Legend (the "U.S. GLOBAL NOTE") which will be deposited
on behalf of the purchasers of the Initial Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, initially
The Depository Trust Company ("DTC"), duly executed by the Company and
authenticated by the Trustee as provided herein, and registered in the name
of DTC or its nominee, in each case for credit to the accounts of DTC's
Direct Participants and Indirect Participants. The aggregate principal amount
of the U.S. Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as the case may be, in connection with the
transfer or exchange of interests, as hereinafter provided.
The Initial Notes offered and sold in offshore transactions in
reliance on Regulation S under the Securities Act ("REGULATION S"), as provided
in the Purchase Agreement, will be issued in denominations of $1,000 and
integral multiples thereof on the Issue Date initially in the form of a single,
temporary, global Note in definitive, fully registered form without interest
coupons with the Global Notes Legend and Restricted Securities Legend (the
"REGULATION S TEMPORARY GLOBAL NOTE"). The Regulation S Temporary Global Note
will be deposited on behalf of the purchasers of the Initial Notes represented
thereby with the Trustee, at its New York office, as custodian for the
Depositary, initially DTC, duly executed by the Company and authenticated by the
Trustee as provided herein, and registered in the name of a nominee of DTC for
credit to the accounts of Indirect Participants at the Euroclear System
("EUROCLEAR") and Cedel Bank, societe anonyme ("CEDEL"). The aggregate
principal amount of the Regulation S Temporary Global Note 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 the case may be, in connection with the
transfer or exchange of interests as hereinafter provided.
The Applicable Procedures shall apply to interests in the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note (as defined
herein) that are held through Euroclear or Cedel.
Upon consummation of the Exchange Offer, the Exchange Notes may be
issued in the form of one or more permanent Global Notes (as defined herein) in
definitive, fully registered form without interest coupons with the Global Notes
Legend but not the Restricted Securities Legend set forth in EXHIBIT A hereto,
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as provided herein.
The aggregate principal amount of such 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 the case may be, in connection with the transfer
or exchange of interests, as provided herein.
(c In addition to the provisions of Section 304, entitlement
holders
35
with security entitlements in Global Notes may upon an Event of Default or in
accordance with ??? rules and procedures, upon request to the Trustee,
receive a certificated Initial Note, which certificated Initial Note shall
bear the Restricted Securities Legend set forth in EXHIBIT A hereto if such
Initial Note is a Transfer Restricted Security.
After a transfer of any Initial Note that ceases to be a Transfer
Restricted Security, all requirements for Restricted Securities Legends on such
Initial Note will cease to apply, and a certificated Initial Note without a
Restricted Securities Legend will be available to the holder of such Initial
Note. Upon the consummation of an Exchange Offer with respect to the Initial
Notes pursuant to which holders of Initial Notes are offered Exchange Notes in
exchange for their Initial Notes, certificated Initial Notes with the Restricted
Securities Legend set forth in EXHIBIT A hereto will be available to holders of
such Initial Notes that do not exchange their Initial Notes, and Exchange Notes
in certificated form without the Restricted Securities Legend set forth in
EXHIBIT A hereto will be available to holders that exchange such Initial Notes
in such Exchange Offer.
(d 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 interest.
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 in accordance with instructions given as required by Section
311 hereof.
Except as set forth in Section 311 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.
In case the Company, pursuant to Article VIII, shall be consolidated
with or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person that shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VIII, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Order of the
successor Person, shall authenticate and make available for delivery Notes as
specified in such request for the purpose of such exchange. If Notes shall at
any time be authenticated and delivered in any new name of a successor
36
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option
of the Holders but without expense to them, shall provide for the exchange of
all Notes at the time Outstanding for Notes authenticated and delivered in
such new name.
(e BOOK-ENTRY PROVISIONS. This Section 303(e) shall apply only
to the Regulation S Temporary Global Note, the U.S. Global Note, the
Regulation S Permanent Global Note and the Exchange Notes issued in the form
of one or more permanent Global Notes (collectively, the "GLOBAL NOTES")
deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 303(e), authenticate and make available for delivery initially one
or more Global Notes that (i) shall be registered in the name of the Depositary
or the nominee of the Depositary for such Global Note or Global Notes or the
nominee of such 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.
Direct Participants and Indirect Participants shall have no rights
either under this Indenture with respect to any Global Note held on their behalf
by the Depositary or by the Trustee as custodian for 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 Direct Participants and Indirect Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a security entitlement in any Global Note.
SECTION 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and make available for
delivery, temporary Notes which are printed, lithographed, typewritten,
photocopied or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Notes in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Notes may determine, as conclusively evidenced by
their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without
37
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and, upon Company Order, the
Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for the Notes (the register maintained in the Corporate
Trust Office of the Trustee and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the "NOTE
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers of
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as note registrar (the Trustee in such
capacity, together with any successor Trustee in such capacity, the "NOTE
REGISTRAR") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee, one or more new Notes, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Notes which the
Holder making the exchange is entitled to receive; PROVIDED that no exchange of
Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission, the
Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the Exchange Notes shall
have been cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the
38
same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 906, 1014, 1015 or 1109 hereof not involving any
transfer.
The Company shall not be required to issue, register the transfer of
or exchange any Note which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Note not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute, and the Trustee shall authenticate and make available for delivery in
exchange therefor, a new Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding, or, in case any such mutilated Note
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless (including without limitation a
lost certificate affidavit and the posting of a bond), then, in the absence of
notice to the Company or the Trustee that such Note has been acquired by a BONA
FIDE purchaser, the Company shall execute and upon Company Order the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount
and bearing a number not contemporaneously outstanding, or, in case any such
destroyed, lost or stolen Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the Company
39
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
PROVIDED, HOWEVER, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Note Register or (ii) by wire
transfer to an account located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "DEFAULTED INTEREST") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The 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, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
40
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose name the Notes (or their
respective Predecessor Notes) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 307 and Section
305, each Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Note.
SECTION 308. PERSONS DEEMED OWNERS
Prior to due presentment of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if
any, on) and (subject to Sections 305 and 307) interest on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Notes surrendered for payment, repayment at the option of the
Holder,
41
registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Notes so delivered
to the Trustee shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation, any Notes previously
authenticated hereunder which the Company has not issued and sold, and all
Notes so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Notes, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented
by such Notes unless and until the same are surrendered to the Trustee for
cancellation. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Notes held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures
unless by Company Order the Company shall direct that cancelled Notes be
returned to it.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. TRANSFER AND EXCHANGE.
When Notes are presented to the Notes Registrar or a co-registrar
with a request to register a transfer or to exchange them for an equal
principal amount of Notes of other denominations, the Notes Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met; PROVIDED, that any Notes presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Notes Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registration of transfers and
exchanges, the Company shall issue and the Trustee shall authenticate Notes
at the Notes Registrar's request.
The Company shall not be required (i) to issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption
under Section 1105 hereof and ending at the close of business on the day of
selection, or (ii) to register the transfer, or exchange, of any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
42
(a) Notwithstanding any provision to the contrary herein, so long
as a Global Note remains Outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, or of any
security entitlement therein, shall only be made in accordance with Section
303(e) and this Section 311(a); PROVIDED, HOWEVER, that security entitlements
with respect to a Global Note may be created in the form of, or transferred
to other entitlement holders who take delivery thereof in the form of a
security entitlement in the same Global Note in accordance with the transfer
restrictions set forth in the Restricted Securities Legend.
(i) Except for transfers or exchanges made in accordance with
clauses (ii) through (iv) of this Section 311(a), transfers of a Global
Note shall be limited to transfers of such Global Note in whole, but not
in part, to nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(ii) U.S. GLOBAL NOTE TO REGULATION S TEMPORARY GLOBAL NOTE. If
an entitlement holder with a security entitlement in the U.S. Global
Note deposited with the Depositary or the Trustee as custodian for the
Depositary, wishes at any time to transfer its security entitlement in
such U.S. Global Note to a person who is required to take delivery
thereof in the form of a security entitlement in the Regulation S
Temporary Global Note, such owner may, subject to the rules and
procedures of the Depositary, exchange or cause the exchange of such
security entitlement for an equivalent security entitlement in the
Regulation S Temporary Global Note. Upon receipt by the Trustee, as
Registrar, at its office in The City of New York of (1) instructions
given in accordance with the Depositary's procedures from a Direct
Participant or an Indirect Participant directing the Trustee to create
or cause to be credited a security entitlement in the Regulation S
Temporary Global Note in an amount equal to the security entitlement in
the U.S. Global Note to be exchanged, (2) a written order given in
accordance with the Depositary's procedures containing information
regarding the participant account of the Depositary and the Euroclear or
Cedel account to be credited with such increase and (3) a certificate in
the form of EXHIBIT C attached hereto given by the holder of such
security entitlement, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the principal amount of the
U.S. Global Note and to increase or cause to be increased the principal
amount of the Regulation S Temporary Global Note by the aggregate
principal amount of the security entitlement in the U.S. Global Note
equal to the security entitlement in the Regulation S Temporary Global
Note to be exchanged or transferred, to credit or cause to be credited
to the account of the person specified in such instructions a security
entitlement in the Regulation S Temporary Global Note equal to the
reduction in the principal amount of the U.S. Global Note and to debit
or cause to be debited from the account of the person making such
exchange or transfer the security entitlement in the U.S. Global Note
that is being exchanged or transferred.
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(iii) REGULATION S TEMPORARY GLOBAL NOTE TO U.S. GLOBAL NOTE. If
an entitlement holder with a security entitlement in the Regulation S
Temporary Global Note deposited with the Depositary or with the Trustee
as custodian for the Depositary wishes at any time to transfer its
security entitlement in such Regulation S Temporary Global Note to a
person who is required to take delivery thereof in the form of a
security entitlement in the U.S. Global Note such holder may, subject to
the rules and procedures of Euroclear or Cedel, as the case may be, and
the Depositary, exchange or cause the exchange of such interest for an
equivalent security entitlement in the U.S. Global Note. Upon receipt
by the Trustee, as Registrar at its office in The City of New York of
(1) instructions from Euroclear or Cedel, if applicable, and the
Depositary, directing the Trustee, as Registrar, to create or cause to
be credited a security entitlement in the U.S. Global Notes equal to the
security entitlement in the Regulation S Temporary Global Note to be
exchanged or transferred, such instructions to contain information
regarding the participant account with the Depositary to be credited
with such increase, (2) a written order given in accordance with the
Depositary's procedures containing information regarding the participant
account of the Depositary and (3) a certificate in the form of EXHIBIT D
attached hereto given by the owner of such security entitlement, then
Euroclear or Cedel or the Trustee, as Registrar, as the case may be,
will instruct the Depositary to reduce or cause to be reduced the
Regulation S Temporary Global Note and to increase or cause to be
increased the principal amount of the U.S. Global Note by the aggregate
principal amount of the security entitlement in the Regulation S
Temporary Global Note to be exchanged or transferred and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with such
reduction, to credit or cause to be credited to the account of the
person specified in such instructions a security entitlement in the U.S.
Global Note equal to the reduction in the principal amount of the
Regulation S Temporary Global Note and to debit or cause to be debited
from the account of the person making such exchange or transfer the
security entitlement in the Regulation S Temporary Global Note that is
being exchanged or transferred.
(iv) GLOBAL NOTE TO TRANSFER RESTRICTED SECURITY. If an
entitlement holder with a security entitlement in a Global Note
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes at any time to transfer its security entitlement in
such Global Note to a person who is required to take delivery thereof in
the form of a Transfer Restricted Security, such owner may, subject to
the rules and procedures of Euroclear or Cedel, if applicable, and the
Depositary, cause the exchange of such security entitlement for one or
more Transfer Restricted Securities of any authorized denomination or
denominations and of the same aggregate principal amount. Upon receipt
by the Trustee, as Registrar, at its office in The City of New York of
(1) instructions from Euroclear or Cedel, if applicable, and the
Depositary directing the Trustee, as Registrar, to authenticate and
deliver one or more Transfer Restricted Securities of the same
44
aggregate principal amount as the security entitlement in the Global
Note to be exchanged, such instructions to contain the name or names of
the designated transferee or transferees, the authorized denomination or
denominations of the Transfer Restricted Securities to be so issued and
appropriate delivery instructions, (2) a certificate in the form of
EXHIBIT E attached hereto given by the owner of such security
entitlement to the effect set forth therein and (3) such other
certifications, legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then Euroclear or
Cedel, if applicable, or the Trustee, as Registrar, as the case may be,
will instruct the Depositary to reduce or cause to be reduced such
Global Note by the aggregate principal amount of the security
entitlement therein to be exchanged and to debit or cause to be debited
from the account of the person making such transfer the security
entitlement in the Global Note that is being transferred, and
concurrently with such reduction and debit the Company shall execute,
and the Trustee shall authenticate and make available for delivery, one
or more Transfer Restricted Securities of the same aggregate principal
amount in accordance with the instructions referred to above.
(v) TRANSFER RESTRICTED SECURITY TO TRANSFER RESTRICTED SECURITY. If
a holder of a Transfer Restricted Security wishes at any time to transfer
such Transfer Restricted Security to a person who is required to take
delivery thereof in the form of a Transfer Restricted Security, such
holder may, subject to the restrictions on transfer set forth herein and
in such Transfer Restricted Security, cause the exchange of such
Transfer Restricted Security for one or more Transfer Restricted
Securities of any authorized denomination or denominations and of the
same aggregate principal amount. Upon receipt by the Trustee, as
Registrar, at its office in The City of New York of (1) such Transfer
Restricted Security, duly endorsed as provided herein, (2) instructions
from such holder directing the Trustee, as Registrar, to authenticate
and make available for delivery one or more Transfer Restricted
Securities of the same aggregate principal amount as the Transfer
Restricted Security to be exchanged, such instructions to contain the
name or authorized denomination or denominations of the Transfer
Restricted Securities to be so issued and appropriate delivery
instructions, (3) a certificate from the holder of the Restricted
Security to be exchanged in the form of EXHIBIT E attached hereto, and
(4) such other certifications, legal opinions or other information as
the Company may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to the registration requirements of the Securities Act, then the
Trustee, as Registrar, shall cancel or cause to be cancelled such
Transfer Restricted Security and concurrently therewith, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, one or more Transfer Restricted Securities of the same
aggregate principal amount at maturity, in accordance with the
instructions
45
referred to above.
(vi) OTHER EXCHANGES. In the event that a security entitlement
with respect to a Global Note is exchanged for Notes in definitive
registered form pursuant to Section 304 prior to the effectiveness of a
Shelf Registration Statement with respect to such Notes, such Notes may
be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of clauses (ii) through (v)
above (including the certification requirements intended to ensure that
such transfer comply with Rule 144A, Rule 144, or Regulation S of the
Securities Act, as the case may be) and such other procedures as may
from time to time to adopted by the Company.
(vii) DISTRIBUTION COMPLIANCE PERIOD. Prior to the later of the
Separability Date and the termination of the 40-day Distribution
Compliance Period with respect to the issuance of the Notes, transfers
of security entitlements in the Regulation S Temporary Global Note to
U.S. Persons shall be limited to transfers to QIBs made pursuant to the
provisions of Section 311(a)(iii). The Company shall advise the Trustee
as to the termination of the 40-day Distribution Compliance Period and
the Trustee may rely conclusively thereon.
(viii) REGULATION S TEMPORARY GLOBAL NOTE TO REGULATION S
PERMANENT GLOBAL NOTE. Following the later of the Separability Date and
the termination of the 40-day Distribution Compliance Period with
respect to the issuance of the Notes, security entitlements in the
Regulation S Temporary Global Note shall be exchanged for security
entitlements in a Global Note in definitive, fully registered from
without interest coupons, with the Global Notes Legend but without the
Restricted Securities Legend (a "REGULATION S PERMANENT GLOBAL NOTE"),
pursuant to the rules and procedures of the Depositary; PROVIDED,
HOWEVER, that prior to (i) the payment of interest or principal with
respect to a holder's security entitlement in the Regulation S Temporary
Global Note and (ii) any exchange of such security entitlement for a
security entitlement in the Regulation S Permanent Global Note,
Euroclear or Cedel shall receive a certificate substantially in the form
of EXHIBIT F hereto from the entitlement holder of such security
entitlement and Euroclear and Cedel shall deliver a certificate
substantially in the form of EXHIBIT G hereto to the Trustee (or the
Paying Agent if different from the Trustee). Upon proper presentment to
the Trustee of a certificate substantially in the form of EXHIBIT H
hereto and subject to the rules and procedures of DTC or its Direct
Participants or Indirect Participants, including Euroclear and Cedel, a
security entitlement in a Regulation S Permanent Global Note may be
exchanged for a certificated Note that is free from any restriction on
transfer (other than such as are solely attributable to any holder's
status).
(b) Except in connection with an Exchange Offer or a Shelf
46
Registration Statement contemplated by and in accordance with the terms of
the Notes Registration Rights Agreement, if Initial Notes are issued upon the
transfer, exchange or replacement of Initial Notes bearing the Restricted
Securities Legend set forth in EXHIBIT A hereto, or if a request is made to
remove such Restricted Securities Legend on Initial Notes, the Initial Notes
so issued shall bear the Restricted Securities Legend, or the Restricted
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Company such satisfactory evidence, which may include an
Opinion of Counsel licensed to practice law in the State of New York, as may
be reasonably required by the Company, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or, with respect to Transfer Restricted
Securities, that such Notes are not "restricted" within the meaning of Rule
144 under the Securities Act. Upon provision of such satisfactory evidence,
the Trustee, at the direction of the Company, shall authenticate and make
available for delivery Initial Notes that do not bear the legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and the
Company shall have no responsibility for any actions taken or not taken by
the Trustee as agent or custodian of the Depositary.
SECTION 312. "CUSIP" AND "ISIN" NUMBERS.
The Company may use "CUSIP" and "ISIN" numbers (if then generally
in use) in issuing the Notes and, if so, the Trustee shall use "CUSIP" or
"ISIN" numbers in notices of redemption or repurchase to Holders 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 redemption or
repurchase and that reliance may be placed only on the other identification
numbers printed on the Notes and any such redemption or repurchase shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
SECTION 313. DEPOSITS OF MONIES.
(a) The Company may from time to time appoint one or more Paying
Agents under this Indenture and the Notes.
(b) Unless the Company shall be acting as Paying Agent as
provided in Section 1003 hereof, prior to 1:00 p.m. New York City time on
each Interest Payment Date, Redemption Date, Stated Maturity, the Change of
Control Payment Date and the
47
Asset Sale Offer Payment Date, the Company shall deposit with the Paying
Agent in immediately available funds money sufficient to make cash payments,
if any, due on such Interest Payment Date, Redemption Date, Stated Maturity,
the Change of Control Payment Date and the Asset Sale Offer Payment Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Redemption Date, Stated
Maturity, the Change of Control Payment Date and the Asset Sale Offer Payment
Date, as the case may be.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to Notes (except as to any surviving rights of
registration of transfer or exchange of the Notes expressly provided for in
this Indenture), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when
(1) either
(A) all the respective Notes theretofore authenticated and
delivered (other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, and (ii) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the
48
expense, of the Company,
and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire Indebtedness on such Notes
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Notes which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606, the
obligations of the Company to any Authenticating Agent under Section 611 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
49
"EVENT OF DEFAULT," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of interest on the Notes when it
becomes due and payable and continuance of such default for a period of
30 days or more; PROVIDED that a default in the payment of any
installment of interest when it becomes due and payable on the Notes on
or prior to April 1, 2001 will constitute an Event or Default, with no
grace or cure period; or
(2) default in the payment of the principal of, or premium, if any,
on the Notes when due; or
(3) default in the performance, or breach, of any covenant
described in Section 1014, Section 1015 or Article VIII; or
(4) default in the performance, or breach, of any covenant in the
Indenture (other than defaults specified in clause (1), (2) or (3)
above) or the Security Agreement and continuance of such default or
breach for a period of 30 days or more after written notice to the
Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% of the aggregate principal amount of the Outstanding
Notes; or
(5) failure to perform any term, covenant, condition or provision
of one or more classes or issues of Indebtedness in an aggregate
principal amount of $5.0 million or more under which the Company or a
Restricted Subsidiary is obligated, and either (a) such Indebtedness is
already due and payable in full or (b) such failure results in the
acceleration of the maturity of such Indebtedness; or
(6) one or more final non-appealable judgments, orders or decrees
for the payment of money of $5.0 million or more, either individually or
in the aggregate, shall be entered against the Company or any Restricted
Subsidiary or any of their respective properties and shall not be
discharged and there shall have been a period of 60 days or more during
which a stay of enforcement of such judgment or order, by reason of
pending appeal or otherwise, shall not be in effect; or
(7) 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
Material Restricted Subsidiary of the Company in an involuntary case or
proceeding under
50
U.S. 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
Material 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 Material Restricted Subsidiary of the Company, under U.S.
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 Material
Restricted Subsidiary of the Company, or of any substantial part of the
property or assets of the Company, or any Material Restricted Subsidiary
of the Company, or ordering the winding up or liquidation of the affairs
of the Company, or any Material 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 60
consecutive days; or
(8) the Company shall assert or acknowledge in writing that the
Security Agreement is invalid or unenforceable.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
clause (7) of Section 501) shall occur and be continuing, then in every such
case the Trustee or the Holders of at least 25% of the aggregate principal
amount of the Outstanding Notes, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee upon the
written request of such Holders shall, declare the aggregate principal amount
of, premium (if any) on, and any accrued and unpaid interest on all of the
Outstanding Notes issued hereunder to be immediately due and payable, and upon
any such declaration all such amounts payable in respect of the Notes shall
become immediately due and payable. If an Event of Default described in
clause (7) of Section 501 shall occur and be continuing with respect to the
Company, then the aggregate principal amount of, premium (if any) on, and any
accrued and unpaid interest on all the Outstanding Notes shall IPSO FACTO become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration or any IPSO FACTO
acceleration pursuant to clause (7) of Section 501 has been made under this
Indenture, but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority of the aggregate principal amount of the Outstanding Notes, by
written notice to the Trustee, may rescind and annul such declaration and its
consequences if:
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(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Outstanding Notes,
(ii) the principal amount of and premium, if any, on any
Outstanding Notes that have become due otherwise than by such
declaration of acceleration, and accrued interest on such unpaid
principal and premium, if any, at the rate borne by the Notes,
(iii) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne
by the Notes, and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default, other than the non-payment of the
principal of and accrued and unpaid interest on the Notes that have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513; and
(c) if the recission of acceleration would not conflict with any
judgment or decree by a court having jurisdiction in the premises.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because of Event of
Default specified in Section 501(5) shall have occurred and be continuing,
such Event of Default and all consequences thereof (including, without
limitation, any acceleration or resulting payment default) shall be
automatically annulled, waived and rescinded if the Indebtedness that is the
subject of such Event of Default shall have been discharged or the holders
thereof shall have rescinded their declaration of acceleration in respect of
such Indebtedness or the default that is the basis for such Event of Default
has been cured, and written notice of such discharge or rescission or cure,
as the case may be, shall have been given to the Trustee by the Company and
countersigned by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 30 days after such declaration of acceleration
in respect of the Notes, and no other Event of Default shall have occurred
during such 30-day period which has not been cured or waived during such
period.
52
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Note at the maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for the principal (and premium, if any) and interest, and interest on
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installment of
interest, at the rate borne by such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the 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 of the Company or any other obligor upon such Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
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 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property
53
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of the principal amount or the overdue principal, premium, if
any, 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 the
principal amount of (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) 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 custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES.
All rights of action and claims under this Indenture, the
Collateral Documents 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 in respect of which such judgment has been recovered.
54
SECTION 506. APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article, including
such amounts held pursuant to the Collateral Documents, 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 the principal amount of (or premium, if
any) or interest on the Notes, 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
606;
SECOND: To the payment of the amounts then due and unpaid for the
principal amount of (and premium, if any, on) and interest on the Notes in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for the principal amount (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% of the aggregate principal
amount of the Outstanding Notes shall have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
55
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
of the aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Note to affect, disturb or prejudice the rights of any
other Holders, 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 or any Note,
except in the manner herein provided and for the equal and ratable benefit of
all Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture or the
Collateral Documents, the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment, as provided herein, of the
principal of (and premium, if any, on) and (subject to Section 307) interest on,
such Note on the respective Stated Maturities expressed in such Note and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to
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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 511. 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 or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority of the aggregate principal
amount of the Outstanding Notes shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or the Collateral Documents,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 902 and the last paragraph of Section 502, the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any
past defaults hereunder and their consequences under this Indenture, except a
default
(1) in respect of the payment of the principal of (or premium, if
any, on) or interest on any Note at maturity, or
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(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Note.
Upon any such waiver, any such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and any other obligor on the Notes covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and each of the Company and any other obligor on the Notes
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 45 days after the earlier of receipt from the Company of
notice of the occurrence of any Default hereunder or the date when such
Default becomes known to the Trustee, the Trustee shall transmit, in the
manner and to the extent provided in TIA Section 313(c), by mail to all
Holders, as their names and addresses appear in the Security Register, notice
of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
Default in the payment of the principal of (or premium, if any, on) or
interest on any Note, or in the case of any Default arising from the
occurrence of any Change of Control, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
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SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) 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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or the Collateral Documents
at the request or direction of any of the Holders of Notes pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, 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 to examine the books, records and premises of the
Company, personally or by agent or attorney;
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(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
and
(9) the Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
NOTES.
The recitals contained herein and in the Notes and in the Collateral
Documents, except for the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in its
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Notes or the proceeds of the sale thereof.
SECTION 604. MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes
and, subject to TIA Sections
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310(b) and 311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Note
Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST.
All money received by the Trustee shall, until used or applied as
herein provided, be held in trust hereunder for the purposes for which they
were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
and its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of this Indenture or in respect of the Collateral
Documents or of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder
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and shall survive the satisfaction and discharge of this Indenture. As
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment
of principal of (and premium, if any, on) or interest on particular Notes at
maturity.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation
of the Trustee for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and (2) and shall have
a combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes
by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 609 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(c) The Trustee may be removed at any time with respect to the Notes
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by Act of the Holders of not less than a majority of the principal amount of
the then Outstanding Notes, delivered to the Trustee and to the Company. If
the instrument of acceptance by a successor Trustee required by Section 609
shall not have been delivered to the Trustee within 30 days after the giving
of such notice of removal, the Trustee being removed may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) 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,
or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign 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, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e),
any Holder who has been a BONA FIDE Holder of a Note for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect
to all Notes and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Notes, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Notes shall be appointed by Act of the Holders of
a majority of the aggregate principal amount of the then Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Notes and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Notes shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a BONA FIDE Holder of a Note for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to the Holders of Notes in the
manner provided for in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Notes and the address of its
Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Each successor Trustee 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; PROVIDED, HOWEVER, on the 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
successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) 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 rights, powers and trusts referred
to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at
the time of such acceptance, such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, 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
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and deliver the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes. In case at that time
any of the Notes shall not have been authenticated, any successor Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor Trustee. In all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of authentication the Trustee shall have;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Notes remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to the Notes which
shall be authorized to act on behalf of the Trustee to authenticate Notes and
the Trustee shall give written notice in the manner provided for in Section
106 of such appointment to all Holders of Notes with respect to which such
Authenticating Agent will serve. Notes so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible
Officer of the Trustee, and a copy of such instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to
the authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any state thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for
the purposes of this Section 611, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, it shall resign immediately in the manner and
with the effect specified in this Section 611.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent; PROVIDED such
65
corporation shall be otherwise eligible under this Section 611, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice in the manner provided for in Section 106 of such appointment
to all Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 611.
The Company agrees to pay to each Authenticating Agent from time to
time such compensation for its services under this Section as shall be agreed
in writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section 611, the Notes
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the 13% Senior Notes due 2008 referred to in the
within-mentioned Indenture.
NORWEST BANK COLORADO, N.A.,
Trustee
By:
-------------------------------------
Authenticating Agent
By:
-------------------------------------
Authorized Officer
SECTION 612. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties
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as are specifically set forth in this Indenture and the Collateral
Documents, and no implied covenants or obligations shall be read into this
Indenture and the Collateral Documents against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture and the Collateral Documents; PROVIDED, HOWEVER, in the case
of any such certificates or opinions which by provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture or the Collateral
Documents.
(b) During the existence of an Event of Default, the Trustee is
required to exercise such rights and powers vested in it under this Indenture
and the Collateral Documents and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise under the circumstances
in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that no provision of
this Indenture or the Collateral Documents shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture and the Collateral Documents relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 612.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. PRESERVATION OF INFORMATION; COMPANY TO FURNISH TRUSTEE
NAMES AND ADDRESSES OF HOLDERS.
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(a) The Trustee shall preserve the names and addresses of the
Holders of the Notes and otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes. Neither the Company nor the Trustee
shall be under any responsibility with regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the Trustee
(i) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(ii) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Registrar,
no such list need be furnished pursuant to this Section 701(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first
May 15 after the Issue Date, the Trustee shall transmit to the Holders (with
a copy to the Company at the Place of Payment), in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15
if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after it files or would be
required to file with the Commission the information pursuant to
Section 1020 hereof, copies of such information;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional
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information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) furnish by mail without cost to all Holders, as their names
and addresses appear in the Note Register and in the manner and to the
extent provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. COMMUNICATIONS OF HOLDERS.
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Notes pursuant to Section 312(b) of
the Trust Indenture Act. The Company and the Trustee and any and all other
persons benefitted by this Indenture shall have the protection afforded by
Section 312(c) of the Trust Indenture Act.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company will not, in a single transaction or a series of
related transactions, (1) consolidate or combined with or merge with or into
any other Person or, directly or indirectly, sell, assign, convey, lease,
transfer, or otherwise dispose of all or substantially all of its properties
and assets substantially as an entirety to any other Person or Persons or
(2) permit any of the Restricted Subsidiaries to enter into any such
transaction or series of related transactions, if such transaction or series
of related transactions, in the aggregate, would result in the sale,
assignment, conveyance, lease, transfer, or other disposition of all or
substantially all of the properties or assets of the Company and the
Restricted Subsidiaries on a consolidated basis to any Person other than the
Company or another Restricted Subsidiary, unless at the time and immediately
after giving effect thereto:
(i) either (a) the Company will be the continuing Person or (b) the
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Person (if other than the Company) formed by such consolidation or into
which the Company or such Subsidiary is merged or the Person which
acquires by sale, conveyance, lease, transfer, or other disposition, all
or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a consolidated basis substantially as an
entirety, as the case may be (the "SURVIVING ENTITY"), (1) will be a
corporation organized and validly existing under the laws of the United
States of America, any state or territory thereof or the District of
Columbia and (2) will expressly assume, by a supplemental indenture to
this Indenture in form satisfactory to the Trustee, the Company's
obligation pursuant to the Notes, this Indenture and the Collateral
Documents for the due and punctual payment of the principal of, premium,
if any, on and interest on all the Notes and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(ii) immediately after giving effect to such transaction or series
of transactions on a PRO FORMA basis (including, without limitation, any
Indebtedness of the Company or any Restricted Subsidiary incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions as having been incurred at the
time of such transaction), no Default shall have occurred and be
continuing; and
(iii) immediately after giving effect to such transaction or series
of transactions on a PRO FORMA basis (including, without limitation, any
Indebtedness of the Company or any Restricted Subsidiary incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions as having been incurred at the
time of such transaction), the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture and assuming
such Surviving Entity's assumption of the Company's or Restricted
Subsidiary's, as the case may be, obligations under the Notes and this
Indenture) would be able to incur $1.00 of Indebtedness under the
proviso in the first paragraph of Section 1008.
In connection with any such consolidation, merger, sale,
assignment, conveyance, lease, transfer, or other disposition, the Company or
the Surviving Entity shall have delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, conveyance, lease, transfer, or other disposition, and if a
supplemental indenture is required in connection with such transaction or
series of transactions to effectuate such assumption, such supplemental
indenture, comply with the requirements of this Indenture and that all
conditions precedent therein provided for relating to such transaction or
series of transactions have been complied with.
For all purposes of the Indenture and the Notes (including the
provisions of
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this Section 801 and Sections 1008, 1009 and 1012), Subsidiaries of any
surviving entity will, upon such transaction or series of related
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to Section 1017 and all Indebtedness, and all Liens on
property or assets, of the Company and the Restricted Subsidiaries in
existence immediately prior to such transaction or series of related
transactions will be deemed to have been incurred upon such transaction or
series of related transactions.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 801 in which
the Company is not the continuing obligor under this Indenture, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture, the Notes and the Collateral
Documents with the same effect as if such successor had been named as the
Company therein. When a successor assumes all the obligations of its
predecessor under this Indenture, the predecessor shall be released from
those obligations; PROVIDED that in the case of a transfer by lease, sale,
assignment, conveyance, transfer, or other disposition to a Restricted
Subsidiary of the Company, the predecessor shall not be released from the
payment of principal of, premium, if any, and interest on the Notes and all
other obligations and covenants under this Indenture and the Notes.
ARTICLE IX
AMENDMENTS; WAIVERS; SUPPLEMENTAL INDENTURES
SECTION 901. AMENDMENTS; WAIVERS AND SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may amend, waive or supplement this Indenture, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company or
any other obligor on the Notes, and the assumption by any such successor
of the covenants of the Company or such obligor contained herein and in
the Notes in
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accordance with Article VIII; or
(2) to add to the covenants of the Company or any other obligor on
the Notes for the benefit of the Holders or to surrender any right or
power conferred upon the Company or any other obligor on the Notes,
herein and in the Notes, as applicable, in the Indenture or the Notes; or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in the Notes which may be defective or inconsistent with any
other provision herein or in the Notes, or to make any other provisions
with respect to matters or questions arising under this Indenture or the
Notes; PROVIDED that, in each case, such provisions shall not adversely
affect the interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification, if any, of this Indenture under
the Trust Indenture Act; or
(5) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(6) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Company's obligations
under this Indenture, in any property or assets, including any of which
are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted, to the Trustee pursuant to
this Indenture or otherwise; or
(7) to add guarantors with respect to the Notes.
PROVIDED that the Company shall have delivered to the Trustee an Opinion of
Counsel stating that any such action pursuant to clauses (1) through (7)
above does not adversely affect the rights of any Holder of Notes.
SECTION 902. MODIFICATION, AMENDMENTS AND SUPPLEMENTAL INDENTURES
WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of all then Outstanding Notes that are affected
thereby, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee may modify, amend or supplement this Indenture 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
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of the Holders of Notes under this Indenture; PROVIDED, HOWEVER, that no such
modification, amendment or supplemental indenture shall, without the consent
of the Holder of each Outstanding Note affected thereby,
(1) reduce the principal amount of, extend the Stated Maturity of or
alter or waive the redemption provisions of, the Notes.
(2) change the currency in which any Notes or any premium or the
accrued interest thereon is payable,
(3) reduce the percentage in aggregate principal amount of
Outstanding Notes that must consent to an amendment, supplement or
waiver or consent to an amendment, supplement or waive or consent to
take any action under the Indenture or the Notes;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes.
(5) waive a default in payment with respect to the Notes;
(6) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control or make and consummate the offer with respect to any Asset Sale
(except in either case for changes required by applicable law) or modify
any of the provisions or definitions with respect thereto or waive any
default in the performance thereof;
(7) reduce or change the rate or extend the time for payment of
interest on the Notes;
(8) modify or change any provision of this Indenture affecting the
ranking of the Notes in a manner adverse to the Holders of the Notes; or
(9) modify the provisions of the Collateral Documents or Section
1021 in any manner adverse to the Holders or release any of the
Collateral from the Lien securing the Notes, including but not limited
to, funds from the Collateral Account (other than as provided in the
Collateral Documents) or permit any other Indebtedness or other
obligation to be secured by any of the Collateral.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
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In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE X
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes
and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the City of New York an office or
agency where Notes may be presented or surrendered for payment (the "PLACE OF
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 hereby designates
the Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. 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
same as its agent to receive such respective presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST.
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If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each date on which payment shall
become due of 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 a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each date on which payment shall become due of
the principal of (and premium, if any, on) or interest on any 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 Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee)
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest on the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal
of (or premium, if any) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such sums.
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Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Note and remaining unclaimed for one
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article VIII, the Company will 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 Restricted Subsidiary; PROVIDED, HOWEVER, that, subject to
the other provisions of this Indenture, the Company shall not be required to
preserve any such right or franchise, or the existence of any Restricted
Subsidiary, if the Company in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (b) all lawful claims for labor, materials and supplies,
which, if unpaid, would by law become a Lien upon the property of the Company
or any Subsidiary; PROVIDED, HOWEVER, 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.
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SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in
good condition, repair and working order (except ordinary wear and tear) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted at
all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any material
respect to the Holders.
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 50 days
after the end of each fiscal quarter and within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company as
to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture and the Collateral Documents since the
beginning of such quarter or such year, as the case may be. For purposes of
this Section 1007(a), such compliance shall be determined without regard to
any period of grace or requirement of notice under this Indenture or the
Collateral Documents.
(b) When any Default has occurred and is continuing under this
Indenture or the Collateral Documents, or if the trustee for or the Holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default (other
than with respect to Indebtedness in the principal amount of less than $5.0
million), the Company shall deliver to the Trustee by registered or certified
mail or by telegram, telex or facsimile transmission an Officers' Certificate
specifying such event, notice or other action within five Business Days after
the Company becomes aware of such occurrence and what action the Company is
taking or proposes to take with respect thereto.
SECTION 1008. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any Restricted Subsidiary
to,
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incur any Indebtedness (including any Acquired Indebtedness) other than
Permitted Indebtedness; PROVIDED that the Company may Incur Indebtedness if
and at the time of such incurrence (i) the Consolidated Indebtedness to
Consolidated Operating Cash Flow Ratio would have been less than or equal to
6.0 to 1.0 and (ii) no Default or Event of Default shall have occurred and be
continuing or occur as a consequence of the actions set forth in this
covenant.
In making the foregoing calculation, (A) PRO FORMA effect will be
given to: (i) the incurrence or repayment of any Indebtedness to be incurred
or repaid on the date of the incurrence of such Indebtedness (the
"TRANSACTION DATE"), (ii) Asset Sales and Asset Acquisitions (including
giving PRO FORMA effect to the application of proceeds of any Assets Sales)
that occur from the beginning of the Four Quarter Period (as defined under
the "CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED OPERATING CASH FLOW RATIO"
definition) through the Transaction Date (the "REFERENCE PERIOD"), as if such
acquisition or disposition had occurred and such proceeds had been applied on
the first day of such Reference Period and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any company, entity or business acquired or disposed of
(including giving PRO FORMA effect to the application of proceeds of such
disposition) by any Person that has become a Restricted Subsidiary or has
been merged with or into the Company or any Restricted Subsidiary during such
Reference Period and that would have constituted Asset Sales or Asset
Acquisitions had such transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions were Asset
Sales or Asset Acquisitions that occurred on the first day of such Reference
Period; PROVIDED that, to the extent that clause (ii) or (iii) of this
sentence requires that PRO FORMA effect be given to an Asset Acquisition or
Asset Sale, such PRO FORMA calculation shall be based upon the four full
fiscal quarters, immediately preceding the Transaction Date of the Person, or
division or line of business of the Person, that is acquired or disposed of
for which financial information is available, and (B) the aggregate amount of
Indebtedness outstanding as of the end of the Reference Period will be deemed
to include an amount of funds equal to the average daily balance of
Indebtedness outstanding during the Reference Period under any revolving
credit or similar facilities of the Company and its Restricted Subsidiaries.
For purposes of this provision, whenever PRO FORMA effect is to be given to a
transaction, the PRO FORMA calculations shall be made in good faith by a
responsible financial or accounting officer of the Company.
For the purposes of determining compliance with this Section 1008,
in the event that an item of Indebtedness or any portion thereof meets the
criteria of more than one of the types of Indebtedness the Company and the
Restricted Subsidiaries are permitted to incur, the Company will have the
right, in its sole discretion, to classify such item of Indebtedness or
portion thereof at the time of its incurrence and will only be required to
include the amount and type of such Indebtedness or portion thereof under the
clause permitting the Indebtedness as so classified.
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SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of its Capital Stock (other than (x) dividends or
distributions payable solely in shares of its Qualified Capital Stock or
in options, warrants or other rights to acquire such shares of Qualified
Capital Stock and (y) dividends or distributions payable to the Company
or any Wholly Owned Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of its Capital Stock or any Capital
Stock of any of its Affiliates or any options, warrants or other rights
to acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated
Indebtedness; or
(iv) make any Investment (other than any Permitted Investment);
(such payments or other actions described in (but not excluded from) clauses
(i) though (iv) are collectively referred to as "RESTRICTED PAYMENTS"),
unless at the time of, and immediately after giving effect to, the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Board, whose determination shall be conclusive and
evidenced by a Board Resolution), (1) no Default or Event of Default shall
have occurred and be continuing, (2) the Company could incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to
the proviso in the first paragraph of Section 1008 and (3) the aggregate
amount of all Restricted Payments declared or made after the Issue Date shall
not exceed the sum of:
(A) 50% of the aggregate amount of the Consolidated
Adjusted Net Income (or, if the Consolidated Adjusted Net Income is a
loss, minus 100% of the amount of such loss) (determined by excluding
income resulting from transfers of assets by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a
cumulative basis during the period (taken as one accounting period)
beginning on the first day of the fiscal quarter immediately
following the Issue Date and ending on the last day of the last full
fiscal quarter immediately preceding the date of such Restricted
Payment for which quarterly or annual consolidated financial statements
of the Company are available; plus
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(B) the aggregate Net Cash Proceeds received by the Company
after the Issue Date as a capital contribution or from the issuance
and sale permitted by the Indenture of its Capital Stock (other
than Disqualified Stock) to a Person who is not a Subsidiary of the
Company, including an issuance or sale permitted by the Indenture
of Indebtedness of the Company for cash subsequent to the Issue
Date upon the conversion of such Indebtedness into Capital Stock
(other than Disqualified Stock) of the Company, or from the
issuance to a Person who is not a Subsidiary of the Company of any
options, warrants or other rights to acquire Capital Stock of the
Company (in each case, exclusive of any Disqualified Stock); plus
(C) to the extent not otherwise included in the Consolidated
Adjusted Net Income of the Company, an amount equal to the sum of
(i) the net reduction in Investments in any Person (other than
Permitted Investments) resulting from the payment in cash of
dividends, repayments of loans or advances or other transfers of
assets, or from the Net Cash Proceeds from the sale of any such
Investment, in each case to the Company or any Restricted
Subsidiary after the Issue Date from such Person and (ii) the
portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; PROVIDED, HOWEVER, that in the
case of (i) or (ii) above the foregoing sum shall not exceed the
amount of Investments previously made (and treated as a Restricted
Payment) by the Company or any Restricted Subsidiary in such Person
or Unrestricted Subsidiary.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect
to clauses (ii) through (v) inclusive and clauses (vii) through (ix)
inclusive below) no Default or Event of Default shall have occurred and be
continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such dividend would
have complied with the provisions of paragraph (a) above and such
payment will be deemed to have been paid on such date of declaration for
purposes of the calculation required by paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company, in exchange
for, or out of the Net Cash Proceeds of a substantially concurrent
issuance and sale (other than to a Restricted Subsidiary) of, shares of
Qualified Capital Stock of the Company;
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PROVIDED, HOWEVER, that such Qualified Capital Stock of the Company may
not be redeemable at the option of the Holder or be required to be
redeemed prior to the Stated Maturity of the Notes;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of shares of Qualified
Capital Stock of the Company;
(iv) the purchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount thereof in the event
of a Change of Control in accordance with provisions similar Section
1014; PROVIDED that prior to such purchase the Company has made the
Change of Control Offer as provided in such covenant with respect to the
Notes and has purchased all Notes validly tendered for payment in
connection with such Change of Control Offer;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent incurrence
(other than to a Subsidiary) of new Subordinated Indebtedness so long as
(A) the principal amount of such new Subordinated Indebtedness does not
exceed the principal amount (or, if such Subordinated Indebtedness being
refinanced provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration thereof, such
lesser amount as of the date of determination) of the Subordinated
Indebtedness being so purchased, redeemed, defeased, acquired or retired,
plus the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of such Subordinated Indebtedness being
refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing, PLUS, in either case,
the amount of expenses of the Company incurred in connection with such
refinancing; (B) such new Subordinated Indebtedness is subordinated to the
Notes to the same extent as such Subordinated Indebtedness so purchased,
redeemed, defeased, acquired or retired and (C) such new Subordinated
Indebtedness has an Average Life to Stated Maturity longer than the Average
Life to Stated Maturity of the Notes and a final Stated Maturity of
principal later than the final Stated Maturity of principal of the Notes;
(vi) the payment of cash in lieu of fractional shares of Common
Stock pursuant to the Warrant Agreement;
(vii) payments of amounts required for any repurchase, redemption
or other acquisition or retirement for value of any Capital Stock of the
Company or any options or rights to acquire such Capital Stock of the
Company owned by any
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director, officer or employee of the Company or its Subsidiaries
pursuant to any management equity subscription agreement or similar
agreement, or otherwise upon the death, disability, retirement or
termination of employment or departure from the Board, PROVIDED that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Capital Stock of the Company or options shall not exceed in the
aggregate $0.5 million in any calendar year;
(viii) payments that would otherwise be Restricted Payments in an
aggregate amount not to exceed $1.0 million;
(ix) Investments in Telecommunications Businesses that would
otherwise be Restricted Payments, the sum of which does not exceed $5.0
million at any one time outstanding; and
(x) repurchases of Capital Stock of the Company solely in
connection with cashless exercises of options, warrants and other
convertible securities.
The actions described in clauses (i) through (iv) inclusive and clauses (vi)
through (ix) inclusive of this paragraph (b) shall be Restricted Payments
that shall be permitted to be taken in accordance with this paragraph (b) but
shall reduce the amount that would otherwise be available for Restricted
Payments under clause (3) of paragraph (a) and the actions described in
clauses (v) and (x) of this paragraph (b) shall be Restricted Payments that
shall be permitted to be taken in accordance with this paragraph (b) and
shall not reduce the amount that would otherwise be available for Restricted
Payments under clause (3) of paragraph (a) above. In the event the proceeds
of an issuance of Qualified Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Notes, or Indebtedness
that is PARI PASSU with the Notes, then the Net Cash Proceeds of such
issuance shall be included in clause (B) of paragraph (a) of this Section
1009 only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of Indebtedness.
SECTION 1010. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES.
The Company will not (i) sell, pledge, hypothecate or otherwise
convey or dispose of any Capital Stock of a Restricted Subsidiary of the
Company (other than under a Permitted Credit Facility) or (ii) permit any of
its Restricted Subsidiaries to issue any Capital Stock, in either case, other
than to the Company or a Restricted Subsidiary of the Company. The foregoing
restrictions shall not apply to an Asset Sale consisting of 100% of the
Capital Stock of a Restricted Subsidiary owned by the Company made in
compliance with Section 1015.
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SECTION 1011. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit, cause or suffer any
Restricted Subsidiary to, conduct any business or enter into any transaction
(or series of related transactions which are similar or part of a common
plan) with or for the benefit of any of their respective Affiliates or any
beneficial Holder of 5% or more of the Common Stock of the Company or any
officer or director of the Company (each, an "AFFILIATE TRANSACTION"), unless
the terms of the Affiliate Transaction are set forth in writing, and are fair
and reasonable to the Company or such Restricted Subsidiary, as the case may
be. Each Affiliate Transaction involving aggregate payments or other Fair
Market Value in excess of $1.0 million shall be approved by a majority of the
Board, such approval to be evidenced by a Board Resolution stating that the
Board has determined that such transaction or transactions comply with the
foregoing provisions. In addition to the foregoing, each Affiliate
Transaction involving aggregate consideration of $5.0 million or more shall
be approved by a majority of the Disinterested Directors; PROVIDED that, in
lieu of such approval by the Disinterested Directors, the Company may obtain
a written opinion from an Independent Financial Advisor stating that the
terms of such Affiliate Transaction to the Company or the Restricted
Subsidiary, as the case may be, are fair from a financial point of view. For
purposes of this covenant, any Affiliate Transaction approved by a majority
of the Disinterested Directors or as to which a written opinion has been
obtained from an Independent Financial Advisor, on the basis set forth in the
preceding sentence, shall be deemed to be on terms that are fair and
reasonable to the Company and the Restricted Subsidiaries, as the case may
be, and therefore shall be permitted under this covenant.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to (i) transactions with or among, or solely for the
benefit of, the Company and/or any of the Restricted Subsidiaries, (ii)
transactions pursuant to agreements and arrangements existing on the Issue
Date, (iii) dividends and other Restricted Payments paid by the Company
pursuant to and in compliance with Section 1009 (iv) customary directors'
fees, indemnification and similar arrangements, employee salaries and
bonuses, employment agreements and arrangements or compensation or employee
benefit arrangements (including options), (v) grants of customary
registration rights with respect to securities of the Company and (vi) loans
or advances to officers or employees of the Company or any Restricted
Subsidiary made in the ordinary course of business of the Company or such
Restricted Subsidiary to pay business related travel expenses or reasonable
relocation costs of such officers or employees in connection with their
employment by the Company or such Restricted Subsidiary.
SECTION 1012. LIMITATION ON LIENS.
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The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than Permitted Liens) on or with respect to (i) any of its property or
assets, including any shares of stock or Indebtedness of any Restricted
Subsidiary, whether owned at the Issue Date or thereafter acquired, or any
income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Subordinated Indebtedness, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien and (y) in the
case of any other Lien, the Notes are equally and ratably secured with the
obligation or liability secured by such Lien, or (ii) the Collateral Account.
SECTION 1013. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
BY RESTRICTED SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to guarantee, assume or in any other manner become
liable with respect to any Indebtedness of the Company (the "GUARANTEED
INDEBTEDNESS") unless (i) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture providing for the guarantee (a
"SUBSIDIARY GUARANTEE") of payment of the Notes by such Restricted
Subsidiary; PROVIDED that this paragraph (a) shall not be applicable to any
guarantee of any Restricted Subsidiary that existed at the time such Person
became a Restricted Subsidiary and was not incurred in connection with or in
contemplation of such Person becoming a Restricted Subsidiary. If the
Guaranteed Indebtedness is (A) PARI PASSU in right of payment with the Notes,
then the guarantee of such Guaranteed Indebtedness shall be PARI PASSU in
right of payment with, or subordinated in right of payment to, the Subsidiary
Guarantee or (B) subordinated in right of payment to the Notes, then the
guarantee of such Guaranteed Indebtedness shall be subordinated in right of
payment to the Subsidiary Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated in right of payment to the Notes.
(b) Notwithstanding the foregoing, any Subsidiary Guarantee
created pursuant to the provisions described in the foregoing paragraph (a)
shall provide by its terms that it shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any
Person who is not an Affiliate of the Company, of all of the Company's
Capital Stock in, or all or substantially all the assets of, such Restricted
Subsidiary (which sale, exchange or transfer is not prohibited by the
Indenture) or (ii) the release by the holders of the Indebtedness of the
Company described in the preceding paragraph of their guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of
all obligations under such Indebtedness, except by or as a result of payment
under such Subsidiary Guarantee), at a time when (A) no other
85
Indebtedness of the Company has been guaranteed by such Restricted Subsidiary
or (B) the holders of all such other Indebtedness which is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed released upon payment in full of all
obligations under such Indebtedness).
SECTION 1014. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (the date of such
occurrence being the "CHANGE OF CONTROL DATE"), the Company shall make an
offer to purchase (the "CHANGE OF CONTROL OFFER"), on a Business Day (the
"CHANGE OF CONTROL PAYMENT DATE") not later than 60 days following the Change
of Control Date, all Notes then Outstanding at a purchase price equal to 101%
of the principal amount thereof on any Change of Control Payment Date, plus
accrued and unpaid interest, if any (the "CHANGE OF CONTROL PURCHASE PRICE"),
to such Change of Control Payment Date. Notice of a Change of Control Offer
shall be given to holders of Notes not less than 25 days nor more than 45
days before the Change of Control Payment Date. The Change of Control Offer
is required to remain open for at least 20 Business Days and until the close
of business of the Change of Control Payment Date. Failure to mail the
notice of Change of Control Offer on the date specified below or to have
satisfied the foregoing condition precedent by the date that such notice is
required to be mailed will constitute a covenant Default under Section 501(3).
(b) The Company shall notify the Trustee of any Change of Control
and give written notice of such Change of Control Offer to each Holder by
first-class mail, postage prepaid, at the address of such Holder appearing in
the Note Register, stating, among other things, (i) the Change of Control
Purchase Price and the Change of Control Payment Date, which shall be a
Business Day no earlier than 25 days nor later than 45 days from the date
such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act or any applicable securities laws or
regulations; (ii) that any Note not tendered will continue to accrue
interest, (iii) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date; (iv) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer shall be required to
surrender the Notes, with the form entitled "OPTION OF HOLDER TO ELECT
PURCHASE" on the reverse of the 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 Purchase Date; (v) that Holders
shall be entitled to withdraw their election if the Paying Agent receives,
not later than the close of business on the second Business Day preceding the
Change of Control Purchase 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 its
election to have such Notes purchased; (vi) that Holders whose
86
Notes are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof; (vii) the instructions that the Holders must
follow in order to tender their Notes; and (viii) the circumstances and
relevant facts regarding such Change of Control.
(c) On the Change of Control Payment Date, the Company will (i)
accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or
portions thereof so tendered and accepted and (iii) deliver to the Trustee
the Notes so accepted together with an Officers' Certificate setting forth
the Notes or portions thereof tendered to and accepted for payment by the
Company. The Paying Agent will promptly mail or deliver to the Holders of
Notes so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Note of like tenor equal in principal amount to any unpurchased portion of
the Note surrendered. Any Notes not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer not later than the first
business day following the Change of Control Payment Date. The Company shall
not be required to make a Change of Control Offer following a Change of
Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
(d) If the Company is required to make a Change of Control Offer,
the Company will comply with all applicable tender offer laws and
regulations, including, to the extent applicable, Section 14(e) and Rule
14e-1 under the Exchange Act, and any other applicable securities laws and
regulations. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 1014, the Company
will comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 1014 by virtue
thereof.
SECTION 1015. DISPOSITION OF PROCEEDS OF ASSET SALES.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the shares or assets sold or otherwise
disposed of and (ii) at least 75% of such consideration (excluding contingent
liabilities assumed by the transferee of any such assets) consists of cash or
Cash Equivalents; PROVIDED that the amount of any liabilities (other than
Subordinated Indebtedness or Indebtedness of a Restricted Subsidiary that
87
would not constitute Restricted Subsidiary Indebtedness) that are assumed by
the transferee of any such assets pursuant to an agreement that
unconditionally releases the Company or such Restricted Subsidiary, as the
case may be, from further liability shall be treated as cash for purposes of
this Section 1015.
(b) Within 365 days after any Asset Sale, the Company or the
applicable Restricted Subsidiary, as the case may be, may at its option (a)
reinvest an amount equal to the Net Cash Proceeds (or any portion thereof)
from such disposition in properties and assets that will be used in a
Telecommunications Business (or in Capital Stock and other securities of any
Person that will become a Restricted Subsidiary as a result of such
investment to the extent such Person owns properties and assets that will be
used in a Telecommunications Business) of the Company or any Restricted
Subsidiary ("REPLACEMENT ASSETS"), and/or (b) apply an amount equal to such
Net Cash Proceeds (or remaining Net Cash Proceeds) to the permanent
reduction of any Indebtedness of the Company ranking PARI PASSU with the
Notes (including the Notes) or the permanent reduction of Indebtedness of any
Restricted Subsidiary of the Company. Pending the final application of any
such Net Cash Proceeds, the Company or such Restricted Subsidiary may
temporarily reduce revolving Indebtedness under any Permitted Credit Facility
or otherwise invest such Net Cash Proceeds in any manner that is not
prohibited by the Indenture. Any Net Cash Proceeds from any Asset Sale that
are not used to reinvest in Replacement Assets and/or repay any such PARI
PASSU Indebtedness of the Company or Indebtedness of its Restricted
Subsidiaries shall constitute "EXCESS PROCEEDS."
(c) When the aggregate amount of Excess Proceeds from one or more
Asset Sales equals or exceeds $5,000,000 the Company shall, within 15
Business Days, make an offer to purchase (an "ASSET SALE OFFER") from all
Holders, on a PRO RATA basis, in accordance with the procedures set forth
below, the maximum principal amount of Notes (expressed as a multiple of
$1,000) that may be purchased with the Excess Proceeds. The offer price (the
"ASSET SALE OFFER PURCHASE PRICE") as to each Note shall be payable in cash
in an amount equal to 100% of the principal amount of such Note, plus accrued
and unpaid cash interest, if any, to the date of purchase (the "ASSET SALE
OFFER PAYMENT DATE"). To the extent that the aggregate Asset Sale Offer
Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company or any Restricted Subsidiary may use such
deficiency for general corporate purposes. If the aggregate Asset Sale Offer
Purchase Price of Notes validly tendered and not withdrawn by Holders thereof
exceeds the Excess Proceeds, Notes to be purchased will be selected on a PRO
RATA basis. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero.
(d) Notwithstanding paragraphs (a), (b) and (c), the Company and
the Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 75% of
the consideration of such Asset Sale constitutes Replacement Assets, cash or
Cash Equivalents (including obligations
88
deemed to be cash for purposes of this Section 1015) and (ii) such Asset
Sale is for Fair Market Value; PROVIDED that any consideration constituting
(or deemed to constitute) cash or Cash Equivalents received by the Company or
any of the Restricted Subsidiaries in connection with any Asset Sale
permitted to be consummated under this paragraph (d) shall constitute Net
Cash Proceeds subject to the provisions of paragraphs (a), (b) and (c).
(e) Whenever the Excess Proceeds received by the Company exceed
$5,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the Trustee or a Paying Agent of
the amount required to purchase the Notes tendered in an Asset Sale Offer,
(ii) delivery by the Company of the Asset Sale Offer Purchase Price to the
Holders tendered in an Asset Sale Offer and (iii) application, as set forth
above, of Excess Proceeds for any lawful purposes. Such Excess Proceeds may
be invested in Cash Equivalents; PROVIDED that the maturity date of any
investment shall not be later than the date of the Asset Sale Offer. The
Company shall be entitled to any interest or dividends accrued, earned or
paid on such Cash Equivalents.
(f) If the Company becomes obligated to make an Asset Sale Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples
of $1,000, on a date that is not earlier than 30 days and not later than 60
days from the date the notice is given to Holders, or such later date as may
be necessary for the Company to comply with the requirements under the
Exchange Act, subject to proration in the event the amount of Excess Proceeds
is less than the aggregate Asset Sale Offer Price of all Notes tendered.
(g) Within 15 days after the obligation of the Company to make an
Asset Sale Offer arises, the Company shall notify the Trustee of such
obligation and give written notice of such Asset Sale Offer to each Holder of
Notes by first-class mail, postage prepaid, at the address of such Holder
appearing in the Note Register, stating, (i) the Asset Sale Offer Purchase
Price and the Asset Sale Offer Payment Date, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is
mailed, or such later date as is necessary to comply with requirements under
the Exchange Act or any applicable securities laws or regulations; (ii) that
any Note not tendered will continue to accrue interest; (iii) that, unless
the Company defaults in the payment of the Asset Sale Offer Purchase Price,
any Notes accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Asset Sale Offer Payment Date; (iv) that Holders
electing to have any Notes purchased pursuant to an Asset Sale Offer shall be
required to surrender the Notes, with the form entitled "OPTION OF HOLDER TO
ELECT PURCHASE" on the reverse of the 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 Offer Payment Date; (v) that
Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Asset Sale Offer Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes
89
delivered for purchase, and a statement that such Holder is withdrawing its
election to have such Notes purchased; (vi) that Holders whose Notes are
being purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; (vii) the instructions that the Holders of Notes must follow in
order to tender their Notes; and (viii) the circumstances and relevant facts
regarding such Asset Sale Offer.
(h) On the Asset Sale Offer Payment Date, the Company will (i)
accept for payment Notes or portions thereof tendered pursuant to the Asset
Sale Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the Asset Sale Offer Purchase Price of all
Notes or portions thereof so tendered and accepted and (iii) deliver to the
Trustee the Notes so accepted together with an Officers' Certificate setting
forth the Notes or portions thereof tendered to and accepted for payment by
the Company. The Paying Agent will promptly mail or deliver to the Holders
of Notes so accepted payment in an amount equal to the Asset Sale Offer
Purchase Price, and the Trustee shall promptly authenticate and mail or
deliver to such holders a new Note of like tenor equal in principal amount to
any unpurchased portion of the Note surrendered. Any Notes not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company will publicly announce the results of the Asset Sale Offer not
later than the first Business Day following the Asset Sale Offer Payment Date.
(i) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Section 14(e) and Rule
14e-1 under the Exchange Act, and any other applicable securities laws and
regulations in connection with an Asset Sale Offer.
SECTION 1016. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise enter into or cause to become
effective any consensual encumbrance or consensual restriction of any kind on
the ability of any Restricted Subsidiary to (a) pay dividends, in cash or
otherwise, or make any other distributions on its Capital Stock or any other
interest or participation in, or measured by, its profits to the extent owned
by the Company or any Restricted Subsidiary, (b) pay any Indebtedness owed to
the Company or any Restricted Subsidiary, (c) make any Investment in the
Company or any Restricted Subsidiary or (d) transfer any of its properties or
assets to the Company or to any Restricted Subsidiary, except for:
(i) any encumbrance or restriction in existence on the Issue Date;
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(ii) customary non-assignment provisions;
(iii) any encumbrance or restriction pertaining to an asset
subject to a Lien to the extent set forth in the documentation governing
such Lien;
(iv) any encumbrance or restriction applicable to a
Restricted Subsidiary at the time that it becomes a Restricted Subsidiary
that is not created in contemplation thereof;
(v) any encumbrance or restriction existing under any
agreement that refinances or replaces an agreement containing a
restriction permitted by clause (i) or (iv) above; PROVIDED that the terms
and conditions of any such encumbrance or restriction are not materially
less favorable to the holders of Notes than those under or pursuant to
the agreement being replaced or the agreement evidencing the Indebtedness
refinanced;
(vi) any encumbrance or restriction imposed upon a Restricted
Subsidiary 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 or any Asset Sale to the extent
limited to the Capital Stock or assets in question; and
(vii) any customary encumbrance or restriction applicable to a
Restricted Subsidiary that is contained in an agreement or instrument
governing or relating to Indebtedness contained in any Permitted Credit
Facility; PROVIDED that (subject to customary net worth, leverage,
invested capital and other financial covenants and the absence of default
under such agreement) the provisions of such agreement permit the payment
of interest and principal and mandatory repurchases pursuant to the terms
of the Indenture and the Notes and other indebtedness that is solely an
obligation of the Company; PROVIDED, FURTHER, that such agreement
may contain customary covenants regarding the merger of or sale of all or
any substantial part of the assets of the Company or any Restricted
Subsidiary, customary restrictions on transactions with affiliates, and
customary subordination provisions governing indebtedness owed to the
Company or any Restricted Subsidiary.
SECTION 1017. DESIGNATIONS OF UNRESTRICTED SUBSIDIARIES.
The Company will not designate any Subsidiary of the Company
(other than a newly created Subsidiary in which no Investment has previously
been made) as an "UNRESTRICTED SUBSIDIARY" under the Indenture (a
"Designation") unless:
(a) no Default shall have occurred and be continuing at the time
of or
91
after giving effect to such Designation;
(b) immediately after giving effect to such Designation, the
Company would be able to incur $1.00 of Indebtedness under the proviso in the
first paragraph of Section 1008 except in the case of (1) a Permitted
Investment or (2) an Investment to the extent reasonably promptly made with
the proceeds of (x) a capital contribution to the Company or (y) an issue or
sale of Capital Stock (other than Disqualified Stock) of the Company (other
than to a Subsidiary of the Company); PROVIDED that any such Net Cash
Proceeds are excluded from clause (3)(B) of paragraph (a) of the Section 1009
and are not used for the redemption, repurchase or other acquisition of
Indebtedness; and
(c) The Company would not be prohibited under the Indenture
from making an Investment at the time of such Designation (assuming the
effectiveness of such Designation) in an amount (the "US DESIGNATION AMOUNT")
equal to the Fair Market Value of the net Investment of the Company or any
other Restricted Subsidiary in such Subsidiary on such date. In the event of
any such Designation, the Company shall be deemed to have made an Investment
constituting a Restricted Payment pursuant to the Section 1009 for all
purposes of the Indenture in the US Designation Amount. The Indenture will
further provide that neither the Company nor any Restricted Subsidiary shall
at any time (x) provide a guarantee of, or similar credit support to, any
Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness); PROVIDED that the
Company may pledge Capital Stock or Indebtedness of any Unrestricted
Subsidiary on a nonrecourse basis such that the pledgee has no claim
whatsoever against the Company other than to obtain such pledged property,
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or
both) declare a default thereon (or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary (including any corresponding right
to take enforcement action against such Unrestricted Subsidiary), except in
the case of clause (x) or (y) to the extent permitted under Sections 1009 and
1011.
The Company will not revoke any Designation of a Subsidiary as
an Unrestricted Subsidiary (a "REVOCATION") unless:
(a) no Default shall have occurred and be continuing at the
time of and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
incurred at such time, have been permitted to be incurred for all purposes of
the Indenture.
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All Designations and Revocations must be evidenced by Board
Resolutions delivered to the Trustee certifying compliance with the foregoing
provisions.
SECTION 1018. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Restricted Subsidiaries
to, keep at all times all of their properties which are of an insurable
nature insured against loss or damage with insurers believed by the Company
to be responsible to the extent that property of similar character is usually
so insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause
its Restricted Subsidiaries to, use the proceeds from any such insurance
policy to repair, replace or otherwise restore properties to which such
proceeds relate, PROVIDED, HOWEVER, that the Company shall not be required to
repair, replace or otherwise restore any such property if such inaction is
desirable in the conduct of the business of the Company or any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1019. BUSINESS OF THE COMPANY.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in business which is not a
Telecommunications Business.
SECTION 1020. PROVISION OF FINANCIAL STATEMENTS AND REPORTS.
(a) Whether or not the Company has a class of securities
registered under the Exchange Act, the Company shall furnish without cost to
each Holder of record of Notes issued thereunder (in sufficient quantities
for distribution to beneficial holders) and file with the Trustee and the
Commission (unless the Commission will not accept such a filing), (i) within
the applicable time period required under the Exchange Act, after the end of
each fiscal year of the Company, the information required by Form 10-K (or
any successor form thereto) under the Exchange Act with respect to such
period (including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" section that describes the consolidated
financial condition and results of operations of the Company), together with
a report thereon by the Company's certified independent accountants, (ii)
within the applicable time period required under the Exchange Act after the
end of each of the first three fiscal quarters of each fiscal year of the
Company, the information required by Form l0-Q (or any successor form
thereto) under the Exchange Act with respect to such period (including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section and describes the consolidated
93
financial condition and results of operations of the Company) and (iii) any
current reports on Form 8-K (or any successor forms) required to be filed
under the Exchange Act.
(b) The Company shall also be required to file with the Trustee
and to provide to each Holder of Notes, without cost to such Holder, copies
of the information, reports and documents required under Section 703. The
Company will also comply with the other provisions of Section 314(a) of the
Trust Indenture Act.
SECTION 1021. WAIVER OF CERTAIN COVENANTS.
The Company and the Restricted Subsidiaries may omit in any
particular instance to comply with any term, provision or condition provided
pursuant to Section 901(2) and set forth in Sections 1008 to 1013, inclusive,
and Sections 1016 to 1020, inclusive, if before or after the time for such
compliance the Holders of at least a majority of the aggregate principal
amount of all Outstanding Notes affected by such term, provision or covenant,
by Act of such Holders, waive such compliance in such instance with such
term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company, the Restricted Subsidiaries and the duties of the Trustee, as
applicable, in respect of any such term, provision or condition shall remain
in full force and effect.
SECTION 1022. LIMITATIONS ON STATUS AS INVESTMENT COMPANY.
The Company will not and will not permit any of its Subsidiaries
or controlled Affiliates to, conduct its business in a fashion that would
cause the Company to be required to register as an "investment company" (as
that term is defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT")), or otherwise become subject to regulation under
the Investment Company Act.
SECTION 1023. COLLATERAL ACCOUNT.
The company shall, on the date of this Indenture, enter into the
Collateral Documents and, pursuant thereto, shall place cash and U.S.
Government Securities in the Collateral Account held by the Custodian for the
benefit of the Holders of the Notes and the Trustee, all as more specifically
set forth in Article XXII hereof.
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ARTICLE XI
REDEMPTION OF NOTES
SECTION 1101. RIGHT OF REDEMPTION.
The Notes may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time after April 1, 2003, subject
to the conditions and at the Redemption Prices specified in the form of Note,
together with accrued and unpaid cash interest to the Redemption Date.
SECTION 1102. REDEMPTION.
The Notes shall be redeemable, at the option of the Company, as
a whole or from time to time in part, at any time on or after April 1, 2003
on not less than 30 nor more than 60 days' prior notice at the Redemption
Prices (expressed as percentages of principal amount) set forth below,
together with accrued and unpaid interest, if any, to the Redemption Date, if
redeemed during the 12-month period beginning on April 1 of the years
indicated below (subject to the right of holders of record on relevant record
dates to receive interest due on a relevant Interest Payment Date):
Redemption Year Price
--------------- -----
2003....................................106.50%
2004....................................104.33
2005....................................102.17
2006 and thereafter.....................100.00
Notwithstanding the foregoing, on or prior to April 1, 2001, the
Company may, at its option, use the net proceeds of one or more Public Equity
Offerings or one or more sales of Common Stock to a Strategic Equity Investor
yielding gross cash proceeds to the Company of not less than $50 million to
redeem up to 35% of the aggregate principal amount of the originally issued
Notes, in each case on a PRO RATA basis, at a Redemption Price of 113% of the
principal amount thereof, together with accrued and unpaid interest to the
Redemption Date; PROVIDED that immediately after giving effect to any such
redemption, not less than 65% of the originally issued aggregate principal
amount of the issued Notes remain Outstanding after each such redemption. To
effect the foregoing redemption, the Company must mail a notice of redemption
not later than 60 days after the consummation of any Public Equity Offering
or sale of Common Stock to a Strategic Equity Investor that resulted in the
requisite gross proceeds.
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SECTION 1103. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1104. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less than
30 nor more than 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Notes to be redeemed pursuant to
Section 1105.
SECTION 1105. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed will be selected not more than 60 days prior to the
Redemption Date by the Trustee by lot, PRO RATA or such other method as the
Trustee in its sole discretion deems fair and appropriate or in such manner
as complies with the requirements of the principal securities exchange, if
any, on which the Notes being redeemed are listed and DTC; PROVIDED that any
redemption following one or more Public Equity Offerings or sales of Common
Stock to a Strategic Equity Investor will be made on a PRO RATA or on as
nearly a PRO RATA basis as practicable (subject to the procedures of DTC);
PROVIDED, HOWEVER, that no such partial redemption will reduce the principal
amount of a Note not redeemed to less than $1,000. Notice of redemption will
be mailed, first-class postage prepaid, no less than 30 nor more than 60 days
prior to the applicable Redemption Date to each Holder of Notes to be
redeemed at its registered address. On and after the Redemption Date,
interest on Notes called for redemption will cease to accrue from and after
the date fixed for redemption (unless the Company defaults in providing the
funds for such redemption) and, upon redemption on such Redemption Date, such
Notes will cease to be Outstanding.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all
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provisions relating to redemption of Notes shall relate, in the case of any
Note redeemed or to be redeemed only in part, to the portion of the principal
amount of such Note which has been or is to be redeemed.
SECTION 1106. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided for
in Section 1106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued and unpaid
interest to the Redemption Date payable as provided in Section 1108, if
any,
(3) if less than all Outstanding Notes are to be redeemed,
the identification (and, in the case of a partial redemption, the
principal amount) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder will receive,
without charge, a new Note or Notes of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued and unpaid interest, if any, to the Redemption Date payable as
provided in Section 1108) will become due and payable upon each such Note,
or the portion thereof, to be redeemed, and that interest thereon will
cease to accrue on and after said date, and
(6) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1107. DEPOSIT OF REDEMPTION PRICE.
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Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and accrued and
unpaid interest on, all the Notes which are to be redeemed on that date.
SECTION 1108. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified (together with accrued interest, if
any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Notes shall cease to accrue cash interest. Upon
surrender of any such Note for redemption in accordance with said notice,
such Note shall be paid by the Company at the Redemption Price, together with
accrued and unpaid interest, if any, to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest, if any, whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1109. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Note so surrendered.
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ARTICLE XII
COLLATERAL AND SECURITY
SECTION 1201. SECURITY AGREEMENT.
The due and punctual payment of the interest on the Notes when
and as the same shall be due and payable on an Interest Payment Date, at
maturity or by acceleration, and interest on the overdue principal of and
interest (to the extent permitted by law), if any, on the Notes and
performance of all other obligations of the Company to the Holders of Notes
or the Trustee under this Indenture and the Notes (the "Secured
Obligations"), according to the terms hereunder or thereunder, shall be
secured as provided in the Custody and Security Agreement (the "SECURITY
AGREEMENT") which the Company, the Custodian of the Collateral Account (the
"CUSTODIAN") and the Trustee have entered into simultaneously with the
execution of this Indenture, along with the Collateral Account Control
Agreement (the "CONTROL AGREEMENT," and together with the Security Agreement,
the "COLLATERAL DOCUMENTS"). Upon the acceleration of the maturity of the
Notes, the Trustee shall foreclose upon the Collateral (as defined in the
Security Agreement). Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Collateral Documents (including,
without limitation, the provisions providing for foreclosure and disbursement
of the Collateral) as the same may be in effect or may be amended from time
to time in accordance with its terms and authorizes and directs the Custodian
and the Trustee to enter into the Collateral Documents and to perform their
respective obligations and exercise their respective rights thereunder in
accordance therewith. The Company shall deliver to the Trustee copies of the
Collateral Documents, and shall do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the provisions
of the Collateral Documents, to assure and confirm to the Trustee the
security interest in the Collateral contemplated by the Collateral Documents
or any part thereof, as from time to time constituted, so as to render the
same available for the security and benefit of this Indenture with respect
to, and of, the Notes, according to the intent and purposes expressed in the
Collateral Documents. The Company shall take any and all actions reasonably
required to cause the Collateral Documents to create and maintain (to the
extent possible under applicable law) as security for the obligations of the
Company hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Trustee for the benefit of the
Holders of Notes, superior to and prior to the rights of all third Persons
and subject to no other Liens. The Trustee shall have no responsibility for
perfecting or maintaining the perfection of the Trustee's security interest
in the Collateral or for filing any instrument, document or notice in any
public office at any time or times.
SECTION 1202. RECORDING AND OPINIONS.
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The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel substantially
in the form of EXHIBIT A to the Purchase Agreement.
The Company shall furnish to the Custodian and the Trustee on
April 1, 1999, and on each April 1 thereafter until the date upon which the
balance of the Collateral shall have been reduced to zero, an Opinion of
Counsel, dated as of such date, either (i) stating that (A) in the opinion of
such counsel, action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements and
other instruments of further assurance as is necessary to maintain the Lien
of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring to prior
Opinions of Counsel in which such details are given and (B) based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding twelve months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the Trustee
hereunder and under the Collateral Documents with respect to the security
interests in the Collateral or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such Lien and assignment.
SECTION 1203. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this Section
1203, Collateral may be released from the Lien and security interest created
by the Collateral Documents only in accordance with the provisions of the
Collateral Documents.
(b) Except to the extent that any Lien on proceeds of
Collateral is automatically released by operation of Section 9-306 of the
Uniform Commercial Code in effect in an applicable jurisdiction or other
similar law, no Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the provisions of
the Collateral Documents, other than to the Holders pursuant to the terms
thereof, unless there shall have been delivered to the Trustee the
certificate required by Section 1203(d) and Section 1204.
(c) At any time when an Event of Default shall have occurred
and be continuing and the maturity of the Notes shall have been accelerated
(whether by declaration or otherwise), no Collateral shall be released
pursuant to the provisions of the Collateral Documents, and no release of
Collateral in contravention of this Section 1203(c) shall be effective as
against the Holders of the Notes, except for the disbursement of the funds in
the Collateral Account to the Trustee pursuant to the Security Agreement.
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(d) The release of any Collateral from the Liens and security
interests created by this Indenture and the Collateral Documents shall not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant to
the terms of the Collateral Documents. To the extent applicable, the Company
shall cause TIA Section 314(d) relating to the release of property or
securities from the Lien and security interest of the Collateral Documents to
be complied with. Any certificate or opinion required by TIA Section 314(d)
may be made by an officer of the Company except in cases where TIA Section
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other
expert selected or approved by the Trustee in the exercise of reasonable care.
SECTION 1204. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee, prior to any proposed
release of Collateral other than pursuant to the express terms of the Collateral
Documents, (i) all documents required by TIA Section 314(d) and (ii) an Opinion
of Counsel, which may be rendered by internal counsel to the Company, to the
effect that such accompanying documents constitute all documents required by TIA
Section 314(d). The Trustee may, to the extent permitted by Section 602 and
Section 612 hereof, accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents and
such Opinion of Counsel.
SECTION 1205. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE DEPOSIT AGREEMENT.
Subject to the provisions of Section 602 and 612 hereof, the Trustee
may, without the consent of the Holders of Notes, on behalf of the Holders of
Notes, take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Collateral Documents and (b) collect and receive
any and all amounts payable in respect of the obligations of the Company
hereunder. The Trustee shall have power to institute and maintain such suits
and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of Notes in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders of Notes or of the Trustee).
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SECTION 1206. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE COLLATERAL DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes disbursed under the Collateral Documents, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture.
SECTION 1207. TERMINATION OF SECURITY INTEREST.
Upon the earliest to occur of (i) the date upon which the balance of
the Collateral Account shall have been reduced to zero, (ii) the payment in full
of all obligations of the Company under this Indenture and the Notes, (iii)
legal defeasance pursuant to Section 1302 and (iv) covenant defeasance pursuant
to Section 1303, the Trustee shall, at the written request of the company,
release the Liens pursuant to this Indenture and the Collateral Documents upon
the Company's compliance with the provisions of the TIA pertaining to release of
collateral.
ARTICLE XIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution and at any time,
effect legal defeasance of the Notes under Section 1302, or covenant defeasance
of the Notes under Section 1303, in accordance with the terms of the Notes and
in accordance with this Article.
SECTION 1302. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1301 of the option
applicable
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to this Section 1302, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Notes on the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by
the Outstanding Notes, which shall thereafter be deemed to be "OUTSTANDING"
only for the purposes of Section 1305 and the other Sections of this
Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under the Notes and this Indenture insofar as the Notes are
concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Notes to receive, solely from the trust
fund described in Section 1304 and as more fully set forth in such Section,
payments in respect of the principal amount of (and premium, if any) and
interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 304, 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article XIII. Subject to compliance with this Article
XIII, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with
respect to such Notes.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1303, the Company shall be released from its
obligations under Sections 1005 through 1020, 1022 and 1023 hereof and Article
VIII hereof with respect to the Outstanding Notes on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and such Notes shall thereafter be deemed not to be "OUTSTANDING"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "OUTSTANDING" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding 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
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(3) or
501(4), as the case may be, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
SECTION 1304. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
103
The following shall be the conditions to application of either Section
1302 or Section 1303 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article XIII applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (A) an
amount in cash in United States dollars, or (B) U.S. Government Securities
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the due
date of any payment of the principal amount (including premium, if any) and
interest, if any, on such Notes, money in an amount, or (C) a combination
thereof, in each case in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the entire Indebtedness in respect of the principal amount
of (and premium, if any, on) and interest on such Outstanding Notes on the
Stated Maturity of such principal (and premium, if any) or installment of
interest (or, if the Company has made irrevocable arrangements satisfactory
to the Trustee for the giving of notice and redemption by the Trustee in
the name and at the expense of the Company, the redemption date thereof);
PROVIDED that the Trustee (or such qualifying trustee) shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Securities to said payments with respect to such Notes.
(2) In the case of an exercise under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since March __, 1998, there has been a
change in the applicable Federal income tax law or interpretation of such
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Notes will
not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
(3) In the case of an exercise under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal
104
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(4) No Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, in the
case of an exercise under Section 1302 hereof, insofar as paragraph (7)
of Section 501 are concerned, at any time during the period ending on
the 123rd day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such 123-day period).
(5) In the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 123rd day following the deposit or after the date such
Opinion of Counsel is delivered, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
(6) Such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Notes were in default within the meaning of
such Act).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
is a party or is bound.
(8) Such legal defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act, unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
SECTION 1305. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1305, the
105
"TRUSTEE") pursuant to Sections 1304 and 1306 in respect of such 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 Paying Agent (including the Company acting as its own
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 the principal amount
(and premium, if any) and interest, but such money 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 Securities
deposited pursuant to Section 1304 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 such Outstanding Notes.
Anything in this Article XIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Securities (or other property and any
proceeds therefrom) held by it as provided in Section 1304 which, in the opinion
of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance, as applicable, in accordance with this
Article.
1306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1302 or 1303, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1305; PROVIDED, HOWEVER, that if the Company makes any payment of the principal
of (or premium, if any) or interest on any such Note following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE XIV
MISCELLANEOUS
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SECTION 1401. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 1402. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 1403. 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 as of the day and year first above written.
CONVERGENT COMMUNICATIONS
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: President
NORWEST BANK COLORADO, N.A.
Trustee
By: /s/ Xxx Xxxx
--------------------------
Authorized Signatory
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND A PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION
S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS
(OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF
THE
A-1
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY)
OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
[THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT OF
THE 13% SENIOR NOTES DUE 2008 OF CONVERGENT COMMUNICATIONS, INC. (THE
"NOTES") AND 4 WARRANTS (EACH, A "WARRANT" AND COLLECTIVELY, THE
"WARRANTS"), EACH WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE 2.7 SHARES OF COMMON STOCK, NO PAR VALUE, OF CONVERGENT
COMMUNICATIONS, INC. (THE "COMMON STOCK"). PRIOR TO THE
A-2
EARLIEST TO OCCUR OF (i) SIX MONTHS AFTER THE DATE OF INITIAL ISSUANCE OF THE
UNITS; (ii) THE DATE ON WHICH A REGISTRATION STATEMENT WITH RESPECT TO A
REGISTERED EXCHANGE OFFER FOR THE NOTES IS DECLARED EFFECTIVE UNDER THE
SECURITIES ACT; (iii) THE OCCURRENCE OF AN EXERCISE EVENT (AS DEFINED IN THE
WARRANT AGREEMENT); (iv) THE OCCURRENCE OF AN EVENT OF DEFAULT (AS DEFINED IN
THE INDENTURE); OR (v) SUCH EARLIER DATE AS DETERMINED BY XXXXXXX XXXXX (AS
DEFINED IN THE WARRANT AGREEMENT) IN ITS SOLE DISCRETION, THE NOTES EVIDENCED
BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT
MAY BE TRANSFERRED OR EXCHANGE ONLY TOGETHER WITH, THE WARRANTS.](1)
--------------------
(1) To be included on Notes issued prior to the Separability Date.
A-3
CONVERGENT COMMUNICATIONS, INC.
13% Series A Senior Note due 2008
CUSIP/INIS
--------------
No.
---------
CONVERGENT COMMUNICATIONS, INC., a Colorado corporation (the
"COMPANY", which term includes any successor under this Indenture hereinafter
referred to), for value received, promises to pay to ___________, or its
registered assigns, the principal sum of ______ ______ Dollars ($________),
on April 1, 2008
Issue Date: April 2,1998
Initial Interest Rate: 13% per annum.
Interest Payment Dates: April 1 and October 1 of each year.
Regular Record Dates: March 15 and September 15 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: CONVERGENT COMMUNICATIONS, INC.
------------------
By:
-----------------------------
Name:
Title:
(SEAL)
(Form of Trustee's Certificate of Authentication)
This is one of the 13% Series A Senior Notes due 2008 referred to in the
within-mentioned Indenture.
Dated: NORWEST BANK COLORADO, N.A.,
---------------------- Trustee
By:
-----------------------------
Authorized Signatory
A-5
[REVERSE SIDE OF NOTE]
CONVERGENT COMMUNICATIONS, INC.
13% Series A Senior Note due 2008
1. PRINCIPAL AND INTEREST.
The Company shall pay the principal of this Note on April 1, 2008.
The Company promises to pay interest on the principal amount of
this Note on each Interest Payment Date, at the rate of 13% per annum, except
that additional interest accrued on this Note pursuant to the fourth
paragraph of this Section 1 and pursuant to the Notes Registration Rights
Agreement (as defined herein) will accrue at the rate or rates borne by the
Notes from time to time as set forth in the Notes Registration Rights
Agreement.
Interest shall be payable semi-annually (to the Holders of record
of the Notes (or any Predecessor Notes) at the close of business on the March
15 or September 15 immediately preceding the Interest Payment Date). The
Company shall pay interest on overdue principal and premium, if any, from
time to time on demand at the interest rate then in effect and shall pay
interest on overdue installments of interest and additional interest (as
discussed below), if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful.
The Holder of this Note shall be entitled to the benefits of the
Notes Registration Rights Agreement dated as of April 2, 1998, among the
Company and the Purchasers named therein (the "NOTES REGISTRATION RIGHTS
AGREEMENT"). In the event that (a) the Exchange Offer Registration Statement
(as such term is defined in the Notes Registration Rights Agreement) is not
filed with the Securities and Exchange Commission on or prior to the 90th
calendar day following the date of original issue of the Notes, (b) the
Exchange Offer Registration Statement (as such term is defined in the Notes
Registration Rights Agreement) has not been declared effective on or prior to
the 150th calendar day following the date of original issue of the Notes, (c)
the Exchange Offer (as such term is defined in the Notes Registration Rights
Agreement) is not consummated or, if required, a Shelf Registration Statement
(as such term is defined in the Notes Registration Rights Agreement) with
respect to the Notes is not declared effective on or prior to the 180th
calendar day following the date of original issue of the Notes or (d) the
Exchange Offer Registration Statement or the Shelf Registration Statement is
declared effective but thereafter ceases to be effective or usable except in
accordance with the Notes Registration Rights Agreement, the Company shall
pay additional interest on the
A-6
Notes (in addition to the interest otherwise due on the Notes) in cash in
arrears on each Interest Payment Date in an amount equal to one-half of one
percent per annum of the principal amount of the Notes with respect to the
first 90-day period following any of such events described in clauses (a)
through (d) above, which rate shall be increased by an additional one-half of
one percent per annum to a maximum of one and one-half percent per annum for
each subsequent 90-day period until such Registration Default has been cured.
Upon (w) the filing of the Exchange Offer Registration Statement after the
90-day period described in clause (a) above, (x) the effectiveness of the
Exchange Offer Registration Statement after the 150-day period described in
clause (b) above, (y) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be, after
the 180-day period described in clause (c) above or (z) the cure of any event
described in clause (d) above, such additional interest rate borne by this
Note from the date of such filing, effectiveness, consummation or cure, as
the case may be, shall cease to accrue; PROVIDED, HOWEVER, that, if after any
such additional interest ceases to accrue, a different event specified in
clause (a), (b), (c) or (d) above occurs, such additional interest rate may
again be increased pursuant to the foregoing provisions.
Interest on this Note shall accrue at the rate of 13% per annum
from the most recent Interest Payment Date to which cash interest has been
paid or duly provided for; PROVIDED that, if there is no existing default in
the payment of interest and if this Note is authenticated between a Regular
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful,
at a rate per annum equal to the rate of interest applicable to the Notes.
2. METHOD OF PAYMENT.
The Company shall pay interest (except defaulted interest) on the
principal amount of the Notes on each April 1 and October 1 to the Persons
who are Holders (as reflected in the Note Register at the close of business
on the March 15 and September 15 immediately preceding the Interest Payment
Date), in each case, even if the Note is cancelled on registration of
transfer or registration of exchange after such Regular Record Date; PROVIDED
that, with respect to the payment of principal, the Company will make payment
to the Holder that surrenders this Note to any Paying Agent on or after April
1, 2008.
The Company shall pay principal (and premium, if any) and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal
(and premium, if any) and interest by its check payable in immediately
available funds. The Company may pay
A-7
interest on the Notes either (a) by mailing a check for such interest to a
Holder's registered address (as reflected in the Note Register) or (b) by
wire transfer to an account located in the United States maintained by the
payee. If a payment date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is
a Business Day and no interest shall accrue for the intervening period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee shall act as Paying Agent and Note
Registrar. The Company may change any Paying Agent or Note Registrar upon
written notice thereto. The Company and any Person authorized by the Company
may act as Paying Agent, Note Registrar or co-Note Registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of April
2, 1998 (the "INDENTURE"), between the Company and Norwest Bank, N.A.,
trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $160,000,000.
5. REDEMPTION.
The Notes shall be redeemable, at the option of the Company, as a
whole or from time to time in part, at any time on or after April 1, 2003 on
not less than 30 nor more than 60 days' prior notice at the Redemption Prices
(expressed as percentages of principal amount) set forth below, together with
accrued and unpaid interest, if any, to the Redemption Date, if redeemed
during the 12-month period beginning on April 1 of the years indicated below
(subject to the right of holders of record on relevant record dates to
receive interest due on a relevant Interest Payment Date):
REDEMPTION
YEAR PRICE
---- ----------
2003 ................... 106.50%
A-8
2004 ................... 104.33
2005 ................... 102.17
2006 and thereafter..... 100.00
Notwithstanding the foregoing, on or prior to April 1 2001, the
Company may, at its option, use the net proceeds of one or more Public Equity
Offerings or one or more sales of Common Stock to a Strategic Equity Investor
yielding gross cash proceeds to the Company of not less than $50 million to
redeem up to 35% of the aggregate principal amount of the originally issued
Notes, in each case on a PRO RATA basis, at a Redemption Price equal to
113% of the principal amount thereof, together with accrued and unpaid
interest to the Redemption Date; PROVIDED that, not less than 65% of the
originally issued aggregate principal amount of Notes would remain
Outstanding immediately after each such redemption.
If less than all the Notes are to be redeemed, the particular Notes
to be redeemed will be selected not more than 60 days prior to the Redemption
Date by the Trustee by lot; PRO RATA or by such other method as the Trustee
in its sole discretion will deem fair and appropriate or in such manner as
complies with the requirements of the principal securities exchange, if any,
on which the Notes being redeemed are listed and DTC; PROVIDED that any
redemption following one or more Public Equity Offerings or sales of Common
Stock to a Strategic Equity Investor will be made on a PRO RATA or on as
nearly a PRO RATA basis as practicable (subject to the procedures of DTC);
PROVIDED, HOWEVER, that no such partial redemption will reduce the principal
amount of a Note not redeemed to less than $1,000. Notice of redemption will
be mailed, first-class postage prepaid, at least 30 but not more than 60 days
before the Redemption Date to each Holder of Notes to be redeemed at its
registered address. On and after the Redemption Date, cash interest will
cease to accrue on Notes or portions thereof called for redemption and
accepted for payment.
6. REPURCHASE UPON A CHANGE IN CONTROL AND ASSET SALES.
Upon the occurrence of a Change of Control, the Company is
obligated to make an offer to purchase all Outstanding Notes at a purchase
price of 101% of the principal amount, plus accrued and unpaid cash
interest, if any, to the date of purchase. Upon the occurrence of certain
Asset Sales, the Company may be obligated to make offers to purchase Notes
with a portion of the Net Cash Proceeds of such Asset Sales at a purchase
price of 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons, in denominations
of $1,000 and multiples of $1,000 in excess thereof. A Holder may register
the transfer or
A-9
exchange of Notes in accordance with the Indenture. The Note Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture.
8. PERSONS DEEMED OWNERS.
A Holder may be treated as the owner of a Note for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of the principal (and premium, if any) or
interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
10. DISCHARGE PRIOR TO MATURITY.
If the Company irrevocably deposits, or causes to be deposited,
with the Trustee money or U.S. Government Securities (or a combination
thereof) sufficient to pay the then Outstanding principal amount (including
premium, if any) and accrued interest, if any, on the Notes on the Stated
Maturity (or upon redemption, if applicable), and complies with the other
applicable conditions set forth in the Indenture, the Company will be
discharged from the Indenture and the Notes, except in certain circumstances
for certain sections thereof, or from certain covenants set forth in the
Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions and conditions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then Outstanding,
and any existing default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then Outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency and make any change
that does not adversely affect the rights of any Holder.
12. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i)
Indebtedness; (ii) Restricted Payments; (iii) issuances and sales of Capital
Stock of Restricted Subsidiaries;
A-10
(iv) transactions with Affiliates; (v) Liens; (vi) issuances of guarantees of
Indebtedness by Restricted Subsidiaries; (vii) disposition of proceeds of
Asset Sales; (viii) dividend and other payment restrictions affecting
Restricted Subsidiaries; (ix) consolidation, merger and certain transfers of
assets; and (x) transactions with Affiliates. Within 120 days after the end
of each fiscal year and within 50 days after the end of each fiscal quarter
of each year, the Company must report to the Trustee on compliance with such
limitations.
13. SUCCESSOR PERSONS.
Except as provided in the Indenture, when a successor person or
other entity assumes all the obligations of its predecessor under the Notes
and the Indenture, the predecessor person will be released from those
obligations.
14. REMEDIES FOR EVENTS OF DEFAULT.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Notes then Outstanding may declare all the Notes to
be immediately due and payable. If a bankruptcy or insolvency default with
respect to the Company or any of its Material Restricted Subsidiaries occurs
and is continuing, the Notes automatically become immediately due and
payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of at least a majority in aggregate principal amount of
the Notes then Outstanding may direct the Trustee in its exercise of any
trust or power.
15. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to,
accept deposits from, perform services for, and otherwise deal with, the
Company and its Affiliates as if it were not the Trustee.
16. AUTHENTICATION.
This Note shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Note.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in
A-11
common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Convergent
Communication, Inc., 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Chief Financial Officer.
A-12
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
------------------------------------------------------------------------------
Your Signature:
---------------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Date:
----------------------------------
By:
-------------------------------------------------------
Notice: To be executed by an executive officer
Signature Guarantee:(2)
-----------------------------------
--------------------------------
(2) (Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock
A-13
------------------------------------------------------------------------------
Exchange, Inc. Medallion Signature Program ("MSP") or such other signature
guarantee program as may be determined by the Security Registrar in addition
to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
A-14
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of
the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company,
the undersigned confirms that such Notes are being transferred
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) / / pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) / / pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of
any person other than the registered holder thereof, PROVIDED,
HOWEVER, that if box (3) or (4) is checked, the Trustee may require,
prior to registering any such transfer of the Notes such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
----------------------------
Signature
Signature Guarantee (1)
-----------------------------
(1) (Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other signature guarantee program
as may be determined by the Security Registrar in addition to, or in
substitution for, STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
A-15
-------------------------- ----------------------------
Signature must be guaranteed Signature
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it (a) is purchasing
this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, (b) is aware that the sale to it is being made in
reliance on Rule 144A, (c) acknowledges (i) it has been afforded an
opportunity to request from the Company and to review, and has received, all
additional information considered by such person to be necessary to evaluate
an investment in the Notes and it has not relied on the Initial Purchasers or
any person affiliated with the Initial Purchasers in connection with its
investigation of the accuracy of such information or its investment decision,
and (iii) no person has been authorized to give information or to make any
representation concerning the Company or the Notes other than information
given by officers and employees of the Company in connection with such
person's examination of the Company and, if given or made, such other
representation should not be relied upon as having been authorized by the
Company or the Initial Purchasers and (d) is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
Date:
-----------------------
NOTICE: To be executed by an executive officer
-------------------------
A-16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 1014 or 1015 of the Indenture, check the box below:
/ / Section 1014 / / Section 1015
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount you
elect to have purchased: $
---------------
Date: Your Signature:
------------ ------------------------------
(Sign exactly as your name appears on
the Note)
Tax Identification
No.:
------------------------
Signature Guarantee.(1)
Signature must be guaranteed.
--------------------------------
(1) (Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other signature guarantee program
as may be determined by the Security Registrar in addition to, or in
substitution for, STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
A-17
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT*
The following increases or decreases in the principal amount of this
Global Note have been made:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Date of Amount of Amount of Principal Signature of
Exchange or decrease in increase in Amount of authorized
Transfer Principal Principal this Global signatory of
Amount of Amount of Note Trustee or
this Global this Global following Note
Note Note such decrease Custodian
or increase
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
------------------------------------------
* TO BE ATTACHED ONLY TO GLOBAL NOTES.
A-18
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[GLOBAL NOTES LEGEND, IF APPLICABLE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
B-1
CONVERGENT COMMUNICATIONS, INC.
13% Series B Senior Note due 2008
CUSIP/INIS
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No.
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CONVERGENT COMMUNICATIONS, INC., a Colorado corporation (the
"COMPANY", which term includes any successor under this Indenture hereinafter
referred to), for value received, promises to pay to ___________, or its
registered assigns, the principal sum of ______ ______ Dollars ($________),
on April 1, 2008
Issue Date: April 2,1998
Initial Interest Rate: 13% per annum.
Interest Payment Dates: April 1 and October 1 of each year.
Regular Record Dates: March 15 and September 15 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: CONVERGENT COMMUNICATIONS, INC.
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By:
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Name:
Title:
(SEAL)
(Form of Trustee's Certificate of Authentication)
This is one of the 13% Series B Senior Notes due 2008 referred to in the
within-mentioned Indenture.
Dated: NORWEST BANK COLORADO, N.A.,
-------------------- Trustee
By:
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Authorized Signatory
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[REVERSE SIDE OF NOTE]
CONVERGENT COMMUNICATIONS, INC.
13% Series B Senior Note due 2008
1. PRINCIPAL AND INTEREST.
The Company shall pay the principal of this Note on April 1,2008.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date at the rate of 13% per annum.
Interest shall be payable semi-annually (to the Holders of record
of the Notes (or any Predecessor Notes) at the close of business on the March
15 or September 15 immediately preceding the Interest Payment Date). The
Company shall pay interest on overdue principal and premium, if any, from
time to time on demand at the interest rate then in effect and shall pay
interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful.
Interest on this Note shall accrue at the rate of 13% per annum
from the most recent Interest Payment Date to which cash interest has been
paid or duly provided for; PROVIDED that, if there is no existing default in
the payment of interest and if this Note is authenticated between a Regular
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful,
at a rate per annum equal to the rate of interest applicable to the Notes.
2. METHOD OF PAYMENT.
The Company shall pay interest (except defaulted interest) on the
principal amount of the Notes on each April 1 and October 1 to the Persons
who are Holders (as reflected in the Note Register at the close of business
on the March 15 and September 15 immediately preceding the Interest Payment
Date), in each case, even if the Note is cancelled on registration of transfer
or registration of exchange after such Regular Record Date; PROVIDED that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to any Paying Agent on or after April 1,
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2008.
The Company shall pay principal (and premium, if any) and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal
(and premium, if any) and interest by its check payable in immediately
available funds. The Company may pay interest on the Notes either (a) by
mailing a check for such interest to a Holder's registered address (as
reflected in the Note Register) or (b) by wire transfer to an account located
in the United States maintained by the payee. If a payment date is a date
other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee shall act as Paying Agent and Note
Registrar. The Company may change any Paying Agent or Note Registrar upon
written notice thereto. The Company and any Person authorized by the Company
may act as Paying Agent, Note Registrar or co-Note Registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of April
2, 1998 (the "INDENTURE"), between the Company and Norwest Bank, N.A.,
trustee (the "TRUSTEE"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The
Indenture limits the aggregate principal amount of the Notes to $160,000,000.
5. REDEMPTION.
The Notes shall be redeemable, at the option of the Company, as a
whole or from time to time in part, at any time on or after April 1, 2003 on
not less than 30 nor more than 60 days' prior notice at the Redemption Prices
(expressed as percentages of principal amount) set forth below, together with
accrued and unpaid interest, if any, to the Redemption Date, if redeemed
during the 12-month period beginning on April 1 of the
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years indicated below (subject to the right of holders of record on relevant
record dates to receive interest due on a relevant Interest Payment Date):
REDEMPTION
YEAR PRICE
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2003..................................... 106.50%
2004..................................... 104.33
2005..................................... 102.17
2006 and thereafter...................... 100.00
Notwithstanding the foregoing, on or prior to April 1, 2001, the
Company may, at its option, use the net proceeds of one or more Public Equity
Offerings or one or more sales of Common Stock to a Strategic Equity Investor
yielding gross cash proceeds to the Company of not less than $50 million to
redeem up to 35% of the aggregate principal amount of the originally issued
Notes, in each case on a PRO RATA basis, at a Redemption Price equal to 113%
of the principal amount thereof, together with accrued and unpaid interest to
the Redemption Date; PROVIDED that, not less than 65% of the originally
issued aggregate principal amount of Notes would remain Outstanding
immediately after each such redemption.
If less than all the Notes are to be redeemed, the particular Notes
to be redeemed will be selected not more than 60 days prior to the Redemption
Date by the Trustee by lot; PRO RATA or by such other method as the Trustee
in its sole discretion will deem fair and appropriate or in such manner as
complies with the requirements of the principal securities exchange, if any,
on which the Notes being redeemed are listed and DTC; PROVIDED that any
redemption following one or more Public Equity Offerings or sales of Common
Stock to a Strategic Equity Investor will be made on a PRO RATA or on as
nearly a PRO RATA basis as practicable (subject to the procedures of DTC);
PROVIDED, HOWEVER, that no such partial redemption will reduce the principal
amount of a Note not redeemed to less than $1,000. Notice of redemption will
be mailed, first-class postage prepaid, at least 30 but not more than 60 days
before the Redemption Date to each Holder of Notes to be redeemed at its
registered address. On and after the Redemption Date, cash interest will
cease to accrue on Notes or portions thereof called for redemption and
accepted for payment.
6. REPURCHASE UPON A CHANGE IN CONTROL AND ASSET SALES.
Upon the occurrence of a Change of Control, the Company is
obligated to make an offer to purchase all Outstanding Notes at a purchase
price of 101% of the principal amount, plus accrued and unpaid cash interest,
if any, to the date of purchase. Upon the occurrence of certain Asset Sales,
the Company may be obligated to make offers to purchase Notes with a portion
of the Net Cash Proceeds of such Asset Sales at a
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purchase price of 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons, in denominations
of $1,000 and multiples of $1,000 in excess thereof. A Holder may register
the transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. PERSONS DEEMED OWNERS.
A Holder may be treated as the owner of a Note for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of the principal (and premium, if any) or
interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
10. DISCHARGE PRIOR TO MATURITY.
If the Company irrevocably deposits, or causes to be deposited,
with the Trustee money or U.S. Government Securities (or a combination
thereof) sufficient to pay the then Outstanding principal amount (including
premium, if any) and accrued interest, if any, on the Notes on the Stated
Maturity (or upon redemption, if applicable), and complies with the other
applicable conditions set forth in the Indenture, the Company will be
discharged from the Indenture and the Notes, except in certain circumstances
for certain sections thereof, or from certain covenants set forth in the
Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions and conditions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then Outstanding,
and any existing default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then Outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture
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or the Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not adversely affect the rights
of any Holder.
12. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i)
Indebtedness; (ii) Restricted Payments; (iii) issuances and sales of Capital
Stock of Restricted Subsidiaries; (iv) transactions with Affiliates; (v)
Liens; (vi) issuances of guarantees of Indebtedness by Restricted
Subsidiaries; (vii) disposition of proceeds of Asset Sales; (viii) dividend
and other payment restrictions affecting Restricted Subsidiaries; (ix)
consolidation, merger and certain transfers of assets; and (x) transactions
with Affiliates. Within 120 days after the end of each fiscal year and
within 50 days after the end of each fiscal quarter of each year, the Company
must report to the Trustee on compliance with such limitations.
13. SUCCESSOR PERSONS.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes and the Indenture, the predecessor person
will be released from those obligations.
14. REMEDIES FOR EVENTS OF DEFAULT.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Notes then Outstanding may declare all the Notes to
be immediately due and payable. If a bankruptcy or insolvency default with
respect to the Company or any of its Material Restricted Subsidiaries occurs
and is continuing, the Notes automatically become immediately due and
payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of at least a majority in aggregate principal amount of
the Notes then Outstanding may direct the Trustee in its exercise of any
trust or power.
15. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to,
accept deposits from, perform services for, and otherwise deal with, the
Company and its Affiliates as if it were not the Trustee.
16. AUTHENTICATION.
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This Note shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Note.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Convergent
Communication, Inc., 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Date:
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By:
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Notice: To be executed by an executive officer
Signature Guarantee:(2)
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(2) (Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock
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Exchange, Inc. Medallion Signature Program ("MSP") or such other signature
guarantee program as may be determined by the Security Registrar in addition
to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of
the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company,
the undersigned confirms that such Notes are being transferred
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) / / pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) / / pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of
any person other than the registered holder thereof, PROVIDED,
HOWEVER, that if box (3) or (4) is checked, the Trustee may require,
prior to registering any such transfer of the Notes such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
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Signature
Signature Guarantee (1)
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(1) (Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New York Stock Exchange,
Inc. Medallion Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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Signature must be guaranteed Signature
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it (a) is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, (b) is aware that the sale to it is being made in reliance on Rule 144A,
(c) acknowledges (i) it has been afforded an opportunity to request from the
Company and to review, and has received, all additional information considered
by such person to be necessary to evaluate an investment in the Notes and it has
not relied on the Initial Purchasers or any person affiliated with the Initial
Purchasers in connection with its investigation of the accuracy of such
information or its investment decision, and (iii) no person has been authorized
to give information or to make any representation concerning the Company or the
Notes other than information given by officers and employees of the Company in
connection with such person's examination of the Company and, if given or made,
such other representation should not be relied upon as having been authorized by
the Company or the Initial Purchasers and (d) is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date:
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NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 1014 or 1015 of the Indenture, check the box below:
/ / Section 1014 / / Section 1015
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount you
elect to have purchased: $
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Date: Your Signature:
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(Sign exactly as your name
appears on the Note)
Tax Identification
No.:
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Signature Guarantee.(1)
Signature must be guaranteed.
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(1) (Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in addition to, or
in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT*
The following increases or decreases in the principal amount of this Global
Note have been made:
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Date of Amount of Amount of Principal Signature of
Exchange or decrease in increase in Amount of authorized
Transfer Principal Principal this Global signatory of
Amount of Amount of Note Trustee or
this Global this Global following Note
Note Note such decrease Custodian
or increase
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* TO BE ATTACHED ONLY TO GLOBAL NOTES.
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
U.S. GLOBAL NOTE
TO REGULATION S TEMPORARY GLOBAL NOTE
(Transfers pursuant to Section 311(a)(ii) of the Indenture)
Norwest Bank Colorado, N.A.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxx
Corporate Trust and Escrow Services
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
---------------------------------------
Reference is hereby made to the Indenture dated as of April 2, 1998
(the "INDENTURE") between Convergent Communications, Inc., as Issuer, and
Norwest Bank, N.A., as Trustee. Capitalized terms used and not defined herein
have the meanings given them in the Indenture. Capitalized terms used herein
and not defined herein or in the Indenture have the meanings set forth in
Regulation S.
This letter relates to U.S. $[principal amount] aggregate principal
amount of Notes which are held in the form of the U.S. Global Note
(CUSIP No. ) with the Depositary in the name of [name of transferor] (the
"Transferor") to effect the transfer of the Notes in exchange for an equivalent
security entitlement in the Regulation S Temporary Global Note.
In connection with such request, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Notes and (i) with respect to transfers made in
reliance on Regulation S, does hereby certify that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) the transaction was executed in on or through the facilities
of a designated offshore securities market and neither the Transferor
nor any person
C-1
acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(a)(2) or 904(a)(2) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of 1933,
as amended (the "SECURITIES ACT");
(ii) with respect to transfers made in reliance on Rule 144, does hereby
certify that the Notes are being transferred in a transaction permitted by Rule
144 under the Securities Act; and (iii) with respect to transfers made in
reliance on Rule 144, does hereby certify that such Notes are being transferred
in accordance with Rule 144A under the Securities Act to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction.
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903(b)(2) or (3) or Rule 904(a)(1) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(b)(2) or (3) or Rule
904(a)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Name of Transferor]
By:
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Name:
Title:
Date:
cc: Convergent Communications, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
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Attn: Chief Financial Officer
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EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S TEMPORARY GLOBAL NOTE
TO U.S. GLOBAL NOTE
(Transfers pursuant to Section 311(a)(iii) of the Indenture)
Norwest Bank Colorado, N.A.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxx
Corporate Trust and Escrow Services
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
---------------------------------------
Reference is hereby made to the Indenture dated as of April 2, 1998
(the "INDENTURE") between Convergent Communications, Inc., as Issuer, and
Norwest Bank, N.A., as Trustee. Capitalized terms used and not defined herein
have the meanings given them in the Indenture.
This letter relates to U.S. $[principal amount] aggregate principal
amount of Notes which are held in the form of the Regulation S Temporary Global
Note (ISIN No. [ ]) with the Depositary in the name of [name of transferor]
(the "Transferor") to effect the transfer of the Notes in exchange for an
equivalent security entitlement in the U.S. Global Note.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Notes and (ii)
Rule 144A under the United States Securities Act of 1933, as amended, to a
transferee that the Transferor reasonably believes is purchasing the Notes for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A.
[Name of Transferor],
By:
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Name:
D-1
Title:
Dated:
cc: Convergent Communications, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
D-2
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL NOTE OR TRANSFER RESTRICTED SECURITY
TO TRANSFER RESTRICTED SECURITY
(Transfers pursuant to Section 311(a)(iv) or
Section 311(a)(v) of the Indenture)
Norwest Bank Colorado, N.A.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxx
Corporate Trust and Escrow Services
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
---------------------------------------
Reference is hereby made to the Indenture dated as of April 2, 1998
(the "Indenture") between Convergent Communications, Inc., as Issuer, and
Norwest Bank, N.A., as Trustee. Capitalized terms used and not defined herein
have the meanings given them in the Indenture.
This letter relates to U.S. $[principal amount] aggregate principal
amount of Notes which are held [in the form of the [U.S./Regulation S] [Global]
[Transfer Restricted] [Note] [Security] (CUSIP Nos. /ISIN No. )
with the Depositary(10) in the name of [name of transferor] (the "Transferor")
to effect the transfer of the Notes.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred (i) in
accordance with the transfer restrictions set forth in the Notes and (ii) in
accordance with applicable securities laws of any state of the United States or
any other jurisdiction.
[Name of Transferor]
By:
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Name:
Title:
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(1) Insert and modify, if appropriate.
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Dated:
cc: Convergent Communications, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
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EXHIBIT F
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S TEMPORARY GLOBAL NOTE
FOR REGULATION S PERMANENT GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(viii))
(Transferor)
[XXXXXX GUARANTY TRUST HOLDINGS
OF NEW YORK, BRUSSELS OFFICE AS
OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
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Reference is hereby made to the Indenture dated as of April 2, 1998
(the "INDENTURE") between Convergent Communications, Inc., as Issuer, and
Norwest Bank, N.A., as Trustee. Capitalized terms used and not defined herein
have the meanings given them in the Indenture.
This certificate relates to U.S. $[principal amount] aggregate
principal amount of Notes which are held in the form of the Regulation S
Temporary Global Note (ISIN No. ) with the Depositary in the name
[name of transferor] (the "Transferor") to effect the transfer of the security
entitlement in such Regulation S Temporary Global Note for a security
entitlement in an equivalent aggregate principal amount of the Regulation S
Permanent Global Note.
In connection with such request, and in respect of such Notes, we
confirm that:
1. We are either not a U.S. person (as defined below) or we have
purchased our security entitlement in the above referenced Regulation S
Temporary Global Note in a transaction that is exempt from the registration
requirements under the Securities Act.
2. We are delivering this certificate in connection with obtaining a
security entitlement in the Regulation S Permanent Global Note in exchange
for our security entitlement in the Regulation S Temporary Global Note.
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For purposes of this certificate. "U.S. PERSON" means (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States, (iii) any estate
of which an executor or administrator is a U.S. person (other than an estate
governed by foreign law and of which at least one executor or administrator is a
non-U.S. person who has sole or shared investment discretion with respect to its
assets), (iv) any trust of which any trustee is a U.S. person (other than a
trust of which at least one trustee is a non-U.S. person who has sole or shared
investment discretion with respect to its assets and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person), (v) any agency or
branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-U.S. person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
person principally for the purpose of investing in securities not registered
under the Securities Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501 (a) under the Securities Act
who are not natural persons, estates or trusts); PROVIDED, HOWEVER, that the
term "U.S. person" shall not include (A) a branch or agency of a U.S. person
that is located and operating outside the United States for valid business
purposes as a locally regulated branch or agency engaged in the banking or
insurance business, (B) any employee benefit plan established and administered
in accordance with the law, customary practices and documentation of a foreign
country and (C) the international organizations set forth in Section 902(o)(7)
of Regulation S under the Securities Act and any other similar international
organizations, and their agencies, affiliates and pension plans.
We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or other proceedings with
respect to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
By:
--------------------------
Name:
Title:
To be completed by the account
holder as, or as agent for, the
entitlement holder(s) of the Notes
to which this certificate relates.
F-2
Dated:
cc: Convergent Communications, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
F-3
EXHIBIT G
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S TEMPORARY GLOBAL NOTE
FOR REGULATION S PERMANENT GLOBAL NOTE
(Transfers pursuant to Section 2.07(a)(viii))
(Euroclear or Cedel)
Norwest Bank Colorado, N.A., as Trustee
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxx
Corporate Trust and Escrow Services
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
---------------------------------------
Reference is hereby made to the Indenture dated as of April 2, 1998
(the "Indenture") between Convergent Communications, Inc., as Issuer, and
Norwest Bank, N.A., as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This certificate relates to U.S. $[principal amount] aggregate
principal amount of Notes which are held in the form of the Regulation S
Temporary Global Note (ISIN No. ) with the Depositary to effect the transfer
of the security entitlement in such Regulation S Temporary Global Note for a
security entitlement in an equivalent aggregate principal amount of the
Regulation S Permanent Global Note.
In connection with such request, this is to certify that, based solely
on certificates we have received in writing, by tested telex or by electronic
transmission from member organizations appearing in our records as persons being
entitled to a portion of the principal amount of the Regulation S Temporary
Global Note set forth above (our "MEMBER ORGANIZATIONS") substantially to the
effect set forth in the Indenture, U.S. $[ ] aggregate principal amount of
the Notes is owned by persons that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source or any other person deemed a "U.S. person" under Regulation S
under the Securities Act of 1993, as amended.
G-1
We further certify (i) that we are not making available herewith for
exchange (or if relevant, exercise of any rights of collection of any interest)
any portion of the Regulation S Global Note excepted in such certificates and
(ii) that, as of the date hereof, we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights of collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain laws, and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certification to any interested party
in such proceedings.
Very truly yours,
[XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE AS OPERATOR OF THE
EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
By:
----------------------------------
Name:
Title:
Dated:
cc: Convergent Communications, Inc.
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
G-2
EXHIBIT H
FORM OF CERTIFICATE FOR TRANSFERS OF
REGULATION S PERMANENT GLOBAL NOTE FOR
CERTIFICATED SECURITIES
(Transfers pursuant to Section 2.07(a)(viii))
(Transferor)
Norwest Bank Colorado, N.A.
0000 Xxxxxxxx
Xxxxxx, XX 00000
Attn:
Re: Convergent Communications, Inc.
13% Senior Notes due 2008 (the "Notes")
---------------------------------------
Reference is hereby made to the Indenture dated as of April 2, 1998
(the "Indenture") between Convergent Communications ,Inc., as Issuer and Norwest
Bank, N.A., as Trustee. Capitalized terms used and not defined herein have the
meanings given them in the Indenture.
This certificate relates to U.S. $[principal amount] aggregate
principal amount of Notes which are held in the form of the Regulation S
Permanent Global Note (ISIN No. ) with the Depositary in the name of [name of
transferor] (the "TRANSFEROR") to effect the transfer of the security
entitlement in such Regulation S Permanent Global Note for an equivalent
aggregate principal amount of certificated notes.
In connection with such request, and in respect of such Notes, we
confirm that:
1. We are either not a U.S. person (as defined below) or we have
purchased our security entitlement in the above referenced Regulation S
Permanent Global Note in a transaction that is exempt from the registration
requirements under the Securities Act.
2. We are delivering this certificate in connection with obtaining a
certificated security in exchange for our security entitlement in the
Regulation S Permanent Global Note.
For purposes of this certificate, "U.S. PERSON" means (i) any
individual resident in the United States, (ii) any partnership or
corporation organized or incorporated
H-1
under the laws of the United States, (iii) any estate of which an
executor or administrator is a U.S. person (other than an estate
governed by foreign law and of which at least one executor or
administrator is a non-U.S. person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. person (other than a trust of which at least one
trustee is a non-U.S. person who has sole or shared investment
discretion with respect to its assets and no beneficiary of the trust
(and no settlor if the trust is revocable) is a U.S. person), (v) any
agency or branch of a foreign entity located in the United States, (vi)
any discretionary or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person, (vii) any discretionary or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States (other than such an
account held for the benefit or account of a non-U.S. person), (viii)
any partnership or corporation organized or incorporated under the laws
of a foreign jurisdiction and formed by a U.S. person principally for
the purpose of investing in securities not registered under the
Securities Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501 (a) under the
Securities Act who are not natural persons, estates or trusts);
PROVIDED, HOWEVER, that the term "U.S. person" shall not include (A) a
branch or agency of a U.S. person that is located and operating outside
the United States for valid business purposes as a locally regulated
branch or agency engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in accordance with
the law, customary practices and documentation of a foreign country and
(C) the international organizations set forth in Section 902(o)(7) of
Regulation S under the Securities Act and any other similar
international organizations, and their agencies, affiliates and pension
plans.
We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or other
proceedings with respect to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
By:
---------------------------
Name:
Title:
To be completed by the account holder
as, or as agent for, the entitlement
holder(s) of the Notes to which this
certificate relates.
Dated:
cc: Convergent Communications, Inc.
H-2
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
H-3
