EXHIBIT 4.1
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RCN CORPORATION, as Issuer
and
THE CHASE MANHATTAN BANK, as Trustee
------------
INDENTURE
Dated as of October 17, 1997
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$225,000,000
10% Senior Notes due 2007, Series A
10% Senior Notes due 2007, Series B
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Reconciliation and tie between Trust Indenture Act of 1939, as amended, and
Indenture, dated as of October 17, 1997
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a)(1).......................................... 6.05, 6.09
(a)(2).......................................... 6.05, 6.09
(a)(3).......................................... 6.05
(a)(4).......................................... 6.05
(b)............................................. 6.05, 6.08, 6.10
Section 311 (a)............................................. 6.07
(b)............................................. 6.07
(c)............................................. Not Applicable
Section 312 (a)............................................. 3.05, 7.01
(b)............................................. 7.02
(c)............................................. 7.02
Section 313 (a)............................................. 7.03
(b)............................................. 7.03
(c)............................................. 7.03
(d)............................................. 7.03
Section 314 (a)............................................. 7.04, 10.09
(b)............................................. Not Applicable
(c)(1).......................................... 1.04, 4.04,
12.01(c)
(c)(2).......................................... 1.04, 4.04,
12.01(c)
(c)(3).......................................... 13.03, 13.04
(d)............................................. Not Applicable
(e)............................................. 1.04
Section 315 (a)............................................. 6.01(a)
(b)............................................. 6.02
(c)............................................. 6.01(b)
(d)............................................. 6.01(c)
(e)............................................. 5.14
Section 316 (a) (last sentence) ............................ 3.14
(a)(1)(A)....................................... 5.12
(a)(1)(B)....................................... 5.13
(a)(2).......................................... Not Applicable
(b)............................................. 5.08
Section 317 (a)(1).......................................... 5.03
(a)(2).......................................... 5.04
(b)............................................. 10.03
Section 318 (a)............................................. 1.08
TABLE OF CONTENTs
Page
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PARTIES....................................................................1
RECITALS...................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..................................................1
Section 1.02. Other Definitions...........................................30
Section 1.03. Rules of Construction.......................................30
Section 1.04. Form of Documents Delivered to Trustee.....................31
Section 1.05. Acts of Holders.............................................32
Section 1.06. Notices, etc., to the Trustee and the Company...............33
Section 1.07. Notice to Holders; Waiver...................................33
Section 1.08. Conflict with Trust Indenture Act...........................34
Section 1.09. Effect of Headings and Table of Contents....................34
Section 1.10. Successors and Assigns......................................34
Section 1.11. Separability Clause.........................................34
Section 1.12. Benefits of Indenture.......................................34
Section 1.13. GOVERNING LAW...............................................35
Section 1.14. No Recourse Against Others..................................35
Section 1.15. Independence of Covenants...................................35
Section 1.16. Exhibits....................................................35
Section 1.17. Counterparts................................................35
Section 1.18. Duplicate Originals.........................................35
ARTICLE TWO
NOTE FORMS
Section 2.01. Form and Dating.............................................36
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.............................................36
Section 3.02. Registrar and Paying Agent..................................37
Section 3.03. Execution and Authentication................................38
Section 3.04. Temporary Notes.............................................39
Section 3.05. Transfer and Exchange.......................................40
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.................41
Section 3.07. Payment of Interest; Interest Rights Preserved..............42
Section 3.08. Persons Deemed Owners.......................................43
Section 3.09. Cancellation................................................44
Section 3.10. Computation of Interest.....................................44
Section 3.11. Legal Holidays..............................................44
Section 3.12. CUSIP and CINS Numbers......................................45
Section 3.13. Paying Agent To Hold Money in Trust.........................45
Section 3.14. Treasury Notes..............................................45
Section 3.15. Deposits of Monies..........................................46
Section 3.16. Book-Entry Provisions for Global Notes......................46
Section 3.17. Special Transfer Provisions.................................47
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
Defeasance................................................52
Section 4.02. Defeasance and Discharge....................................52
Section 4.03. Covenant Defeasance.........................................53
Section 4.04. Conditions to Defeasance or Covenant Defeasance.............53
Section 4.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions.......56
Section 4.06. Reinstatement...............................................57
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default...........................................57
Section 5.02. Acceleration of Maturity Rescission and Annulment...........60
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................60
Section 5.04. Trustee May File Proofs of Claims...........................61
Section 5.05. Trustee May Enforce Claims Without Possession of Notes......63
Section 5.06. Application of Money Collected..............................63
Section 5.07. Limitation on Suits.........................................64
Section 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest...........................64
Section 5.09. Restoration of Rights and Remedies..........................65
Section 5.10. Rights and Remedies Cumulative..............................65
Section 5.11. Delay or Omission Not Waiver................................65
Section 5.12. Control by Majority.........................................65
Section 5.13. Waiver of Past Defaults.....................................66
Section 5.14. Undertaking for Costs.......................................66
Section 5.15. Waiver of Stay, Extension or Usury Laws.....................67
Section 5.16. Unconditional Right of Holders To Receive Payment...........67
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.........................67
Section 6.02. Notice of Defaults..........................................68
Section 6.03. Certain Rights of Trustee...................................69
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of
Notes or Application of Proceeds Thereof..................71
Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc.........71
Section 6.06. Money Held in Trust.........................................71
Section 6.07. Compensation and Indemnification of Trustee and Its Prior
Claim.....................................................72
Section 6.08. Conflicting Interests.......................................73
Section 6.09. Corporate Trustee Required; Eligibility.....................73
Section 6.10. Resignation and Removal; Appointment of Successor Trustee...73
Section 6.11. Acceptance of Appointment by Successor......................75
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business....................................76
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders....................77
Section 7.02. Communications of Holders...................................77
Section 7.03. Reports by Trustee..........................................78
Section 7.04. Reports by Company..........................................78
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on Certain Terms........79
Section 8.02. Successor Substituted.......................................80
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders................................81
Section 9.02. Supplemental Indentures, Agreements and Waivers
with Consent of Holders. .................................82
Section 9.03. Execution of Supplemental Indentures, Agreements and
Waivers...................................................83
Section 9.04. Effect of Supplemental Indentures...........................84
Section 9.05. Conformity with Trust Indenture Act.........................84
Section 9.06. Reference in Notes to Supplemental Indentures...............84
Section 9.07. Record Date.................................................84
Section 9.08. Revocation and Effect of Consents...........................85
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.................85
Section 10.02. Maintenance of Office or Agency............................85
Section 10.03. Money for Note Payments To Be Held in Trust................86
Section 10.04. Corporate Existence........................................88
Section 10.05. Payment of Taxes and Other Claims..........................88
Section 10.06. Maintenance of Properties..................................88
Section 10.07. Insurance..................................................89
Section 10.08. Books and Records..........................................89
Section 10.09. Provision of Financial Statements..........................89
Section 10.10. Change of Control..........................................89
Section 10.11. Limitation on Additional Indebtedness......................92
Section 10.12. Statement by Officers as to Default........................93
Section 10.13. Limitation on Restricted Payments..........................94
Section 10.14. Limitation on Transactions with Affiliates.................97
Section 10.15. Disposition of Proceeds of Asset Sales.....................98
Section 10.16. Limitation on Liens Securing Certain Indebtedness.........102
Section 10.17. Limitation on Business....................................103
Section 10.18. Limitation on Certain Guarantees and Indebtedness of
Restricted Subsidiaries and Restricted Affiliates.......103
Section 10.19. Limitation on Issuances and Sales of Preferred Stock
by Restricted Subsidiaries and Restricted Affiliates....104
Section 10.20. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries or Restricted
Affiliates..............................................104
Section 10.21. Designations of Unrestricted Subsidiaries................105
Section 10.22. Designations of Restricted Affiliates.....................107
Section 10.23. Compliance Certificates and Opinions. ....................108
Section 10.24. Reports...................................................109
Section 10.25. Escrow Account............................................109
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture...................110
Section 11.02. Application of Trust Money................................111
ARTICLE TWELVE
REDEMPTION
Section 12.01. Notices to the Trustee....................................111
Section 12.02. Selection of Notes To Be Redeemed.........................111
Section 12.03. Notice of Redemption......................................112
Section 12.04. Effect of Notice of Redemption............................113
Section 12.05. Deposit of Redemption Price...............................113
Section 12.06. Notes Redeemed or Purchased in Part.......................113
ARTICLE THIRTEEN
COLLATERAL AND SECURITY
Section 13.01. Escrow Agreement..........................................114
Section 13.02. Recording and Opinions....................................115
Section 13.03. Release of Collateral.....................................116
Section 13.04. Certificates of the Company...............................117
Section 13.05. Authorization of Actions to Be Taken by the
Trustee Under the Escrow Agreement......................117
Section 13.06. Authorization of Receipt of Funds by the Trustee
Under the Escrow Agreement..............................118
Section 13.07. Termination of Security Interest..........................118
Exhibit A-1 - Form of Series A Note
Exhibit A-2 - Form of Series B Note
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection
with Transfers Pursuant to Regulation S
INDENTURE, dated as of October 17, 1997, between RCN
CORPORATION, a corporation incorporated under the laws of the State of
Delaware (the "Company"), as issuer, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of (i)
10% Senior Notes due 2007, Series A (the "Initial Notes"), and (ii) 10% Senior
Notes due 2007, Series B, to be issued in exchange for the 10% Senior Notes
due 2007, Series A, pursuant to the Registration Rights Agreement (the
"Exchange Notes" and, together with the Initial Notes, the "Notes," treated as
a single class of securities under this Indenture), of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary have been done to make the Notes, when
executed by the Company, and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of each of the Company and the Trustee in
accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders (as hereinafter defined) of
the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a person existing
at the time such person becomes a Restricted Subsidiary or Restricted
Affiliate 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 Restricted Affiliate 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 Restricted Affiliate or such Asset Acquisition shall not
constitute Acquired Indebtedness.
"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 Income Tax Expense" means, with respect to any
period and any Restricted Affiliate, the aggregate provision for United States
corporation, local, foreign and other income taxes of such Restricted
Affiliate for such period as determined in accordance with GAAP.
"Affiliate Interest Expense" means, with respect to any period
and any Restricted Affiliate, without duplication, the sum of (i) the interest
expense of such Restricted Affiliate and its Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, including, without
limitation, (a) any amortization of debt discount, (b) the net cost under
Interest Rate Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing and similar transactions and (e) all accrued
interest, (ii) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued during such period as
determined on a consolidated basis in accordance with GAAP and (iii) the amount
of dividends in respect of Disqualified Stock paid during such period.
"Affiliate Net Income" means, with respect to any period and
any Restricted Affiliate, the net income of such Restricted Affiliate and its
Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, adjusted, to the extent included in calculating such net
income of such Restricted Affiliate and its Subsidiaries, by excluding,
without duplication, (i) all extraordinary, unusual or nonrecurring gains or
losses of such person (net of fees and expenses relating to the transaction
giving rise thereto) for such period, (ii) income of such Restricted Affiliate
or any of its Subsidiaries derived from or in respect of all unconsolidated
Investments, except to the extent of any dividends or distributions actually
received by such Restricted Affiliate or any of its Subsidiaries, (iii) net
income (or loss) of any other person combined with such Restricted Affiliate
or any of its Subsidiaries on a "pooling of interests" basis attributable to
any period prior to the date of combination, (iv) any gain or loss, net of
taxes, realized by such person upon the termination of any employee pension
benefit plan during such period, and (v) gains or losses in respect of any
Asset Sales (net of fees and expenses relating to the transaction giving rise
thereto) during such period.
"Affiliate Operating Cash Flow" means, with respect to any
period and any Restricted Affiliate, the Affiliate Net Income of such
Restricted Affiliate and its Subsidiaries on a consolidated basis for such
period increased, only to the extent deducted in arriving at Affiliate Net
Income for such period, by the sum of (i) the Affiliate Income Tax Expense
accrued according to GAAP for such period (other than taxes attributable to
extraordinary gains or losses and gains and losses from Asset Sales); (ii)
Affiliate Interest Expense for such period; (iii) depreciation of such
Restricted Affiliate for such period; (iv) amortization of such Restricted
Affiliate and its Subsidiaries for such period, including, without limitation,
amortization of capitalized debt issuance costs for such period, all
determined in accordance with GAAP; and (v) other non-cash charges decreasing
Affiliate Net Income.
"Affiliate Pro Forma Operating Cash Flow" means Affiliate
Operating Cash Flow for the latest four fiscal quarters for which consolidated
financial statements of the applicable Restricted Affiliate are available.
For purposes of this definition, "Affiliate Operating Cash Flow" shall be
calculated after giving effect on a pro forma basis for the applicable four
fiscal quarter period to, without duplication, any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Restricted Affiliate
or any of its Subsidiaries incurring Acquired Indebtedness) occurring during
the period commencing on the first day of such four fiscal quarter period to
and including the date of the transaction giving rise to the need to calculate
"Affiliate Pro Forma Operating Cash Flow" as if such Asset Sale or Asset
Acquisition occurred on the first day of such period.
"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 or Restricted Affiliate to any other
person, or any acquisition or purchase of Capital Stock of any other person by
the Company or any Restricted Subsidiary or Restricted Affiliate, in either
case pursuant to which such person shall (a) become a Restricted Subsidiary or
Restricted Affiliate or (b) shall be merged with or into the Company or any
Restricted Subsidiary or Restricted Affiliate or (ii) any acquisition by the
Company or any Restricted Subsidiary or Restricted Affiliate 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) any Capital Stock of
any Restricted Subsidiary (other than customary stock option programs) or any
Restricted Affiliate, (ii) any assets of the Company or any Restricted
Subsidiary or any Restricted Affiliate which constitute substantially all of
an operating unit or line of business of the Company and the Restricted
Subsidiaries and the Restricted Affiliates or (iii) any other property or
asset of the Company or any Restricted Subsidiary or any Restricted Affiliates
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 8.01, (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 or
Restricted Affiliate, as the case may be, and (iii) for purposes of Section
10.15 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, either (x) involving assets with a
Fair Market Value not in excess of $500,000 or (y) which constitutes the
incurrence of a Capitalized Lease Obligation.
"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 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 or Restricted Affiliate.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or the law of any
other jurisdiction 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.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
receivership, winding-up, dissolution, "concordate" or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
"BECO Joint Venture" means RCN-BECOCOM, LLC, a Massachusetts
limited liability company formed under the terms of a Joint Venture Agreement
dated as of December 23, 1996 between RCN Telecom Services, Inc. and Boston
Energy Technology Group, Inc.
"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.
"Buildout Costs" means the cost of the construction, expansion,
development or acquisition (other than an Asset Acquisition of any person that
is not a Restricted Affiliate on the Issue Date) of properties or assets
(tangible or intangible) to be utilized, directly or indirectly, for the
design, development, construction, installation, integration, management or
provision of a Permitted Business.
"Buildout Indebtedness" means Indebtedness incurred by the
Company and/or any Restricted Subsidiary and/or any Restricted Affiliate to
the extent the proceeds thereof are used to finance or support Buildout Costs
in respect of a Permitted Business of the Company and/or any Restricted
Subsidiary and/or Restricted Affiliate.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, New York 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 any obligation 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 this 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 10.15 hereof 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, certificates
of deposit or acceptances (with, for purposes of Section 10.15 hereof 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-1" by
S&P or "P-1" 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-1" by S&P or "P-1" 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 of the type described in the preceding clauses (i) through (iv).
"Cedel" means Cedel Bank, Societe Anonyme.
"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 Kiewit 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; or (b) 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 this Indenture and
(ii) immediately after such transaction no "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Exchange Act), excluding the Kiewit
Holders, is 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
surviving or transferee corporation or its parent corporation, as applicable;
or (c) during any consecutive two-year period, individuals who at the beginning
of such period constituted 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 (other than by action of the Kiewit Holders) to constitute a majority
of the Board then in office.
"Collateral" shall have the meaning ascribed to such term in
the Escrow Agreement.
"Common Stock" means, with respect to any person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or non-voting) of such person's common stock
whether outstanding at the Issue Date, and includes, without limitation,
all series and classes of such common stock.
"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 any one of its Chairman of the
Board, its Vice-Chairman, its Chief Executive Officer, its President or a Vice
President, and by its Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and delivered to the Trustee.
"Consolidated Income Tax Expense" means, with respect to any
period, the aggregate provision for United States corporation, local, foreign
and other income taxes of the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP and of
each of the Restricted Affiliates for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any
period, without duplication, the sum of (i) the interest expense of the
Company and the Restricted Subsidiaries and the Restricted Affiliates for such
period as determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of debt discount, (b) the
net cost under Interest Rate Obligations (including any amortization of
discounts), (c) the interest portion of any deferred payment obligation, (d)
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and similar transactions
and (e) all accrued interest, (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued during such
period as determined on a consolidated basis in accordance with GAAP and (iii)
the amount of dividends in respect of Disqualified Stock paid during such
period.
"Consolidated Net Income" means, with respect to any period,
the consolidated net income of the Company and the Restricted Subsidiaries for
such period in accordance with GAAP, adjusted, without duplication, (A) to
include the consolidated net income of the Restricted Affiliates only to the
extent of the equity interest of the Company and the Restricted Subsidiaries
and (B) adjusted, to the extent included in calculating such adjusted
consolidated net income of the Company and the Restricted Subsidiaries, by
excluding, without duplication, (i) all extraordinary, unusual or nonrecurring
gains or losses of such person (net of fees and expenses relating to the
transaction giving rise thereto) for such period, (ii) subject to clause (A)
above, income of the Company and the Restricted Subsidiaries and the Restricted
Affiliates derived from or in respect of all unconsolidated Investments,
except to the extent of any dividends or distributions actually received by
the Company or any Restricted Subsidiary, (iii) the portion of net income (or
loss) of such person allocable to minority interests in Restricted
Subsidiaries and Restricted Affiliates for such period, (iv) net income (or
loss) of any other person combined with the Company or any Restricted
Subsidiary or Restricted Affiliate on a "pooling of interests" basis
attributable to any period prior to the date of combination, (v) any gain or
loss, net of taxes, realized by such person upon the termination of any
employee pension benefit plan during such period, (vi) gains or losses in
respect of any Asset Sales (net of fees and expenses relating to the
transaction giving rise thereto) during such period and (vii) except to the
extent permitted by clause (vii) of Section 10.20 hereof, the net income of any
Restricted Subsidiary or Restricted Affiliate for such period to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary or Restricted Affiliate of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Restricted subsidiary or
Restricted Affiliate or its stockholders.
"Consolidated Operating Cash Flow" means, with respect to any
period, the Consolidated Net Income for such period increased, only to the
extent (which, in the case of the Restricted Affiliates, means to the extent
of the equity interest of the Company and the Restricted Subsidiaries)
deducted in arriving at Consolidated Net Income for such period, by the sum of
(i) the Consolidated Income Tax Expense accrued according to GAAP for such
period (other than taxes attributable to extraordinary gains or losses and
gains and losses from Asset Sales); (ii) Consolidated Interest Expense for
such period; (iii) depreciation of the Company and the Restricted Subsidiaries
and the Restricted Affiliates for such period; (iv) amortization of the
Company and the Restricted Subsidiaries and the Restricted Affiliates for such
period, including, without limitation, amortization of capitalized debt
issuance costs for such period, all determined on a consolidated basis in
accordance with GAAP, and (v) other non-cash charges decreasing
Consolidated Net Income.
"Consolidated Pro Forma Operating Cash Flow" means Consolidated
Operating Cash Flow for the latest four fiscal quarters for which consolidated
financial statements of the Company are available. For purposes of calculating
"Consolidated Operating Cash Flow" for any four fiscal quarters for purposes
of this definition, (i) any Subsidiary of the Company that is a Restricted
Subsidiary on the date of the transaction giving rise to the need to calculate
"Consolidated Pro Forma Operating Cash Flow" (the "Transaction Date") (or
would become a Restricted Subsidiary in connection with the transaction that
requires determination of such amount) shall be deemed to have been a
Restricted Subsidiary at all times during such four fiscal quarters, (ii) any
Joint Venture that is a Restricted Affiliate on the Transaction Date (or would
become a Restricted Affiliate in connection with the transaction that requires
the determination of such amount) shall be deemed to have been a Restricted
Affiliate at all times during such four fiscal quarters, (iii) any Subsidiary
of the Company that is not a Restricted Subsidiary on the Transaction Date (or
would cease to be a Restricted Subsidiary in connection with the transaction
that requires the determination of such amount) shall be deemed not to have
been a Restricted Subsidiary at any time during such four fiscal quarters and
(iv) any Joint Venture that is not a Restricted Affiliate on the Transaction
Date (or would cease to be a Restricted Affiliate in connection with the
transaction that requires the determination of such amount) shall be deemed not
to have been a Restricted Affiliate at any time during such four fiscal
quarters. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated Operating Cash Flow" shall be
calculated after giving effect on a pro forma basis for the applicable four
fiscal quarter period to, without duplication, any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Company's or one of
the Restricted Subsidiaries' or Restricted Affiliates' (including any person
who becomes a Restricted Subsidiary or Restricted Affiliate as a result of the
Asset Acquisition) incurring Acquired Indebtedness) occurring during the
period commencing on the first day of such four fiscal quarter period to and
including the Transaction Date, as if such Asset Sale or Asset Acquisition
occurred on the first day of such period.
"consolidation" means, (i) 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 or
Restricted Affiliate with the accounts of the Company and (ii) with respect to
any Restricted Affiliate, the consolidation of the accounts of the
Subsidiaries of such Restricted Affiliate with those of such Restricted
Affiliate, all in accordance with GAAP. The term "consolidated" has a
correlative meaning to the foregoing.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
Indenture is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Global Trust Services, or at any other time at such other
address as the Trustee may designate from time to time by notice to the
Noteholders.
"Custodian" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Amount" means all principal, premium, if any, and
accrued and unpaid interest in respect of the Notes.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Designation Amounts" means, at any date of determination, the
sum of all US Designation Amounts and all JV Revocation Amounts.
"Disinterested Director" means, with respect to any transaction
or series of related transactions, a member of the Board of the Company other
than a director who (i) has any material direct or indirect financial interest
in or with respect to such transaction or series of related transactions or
(ii) is an employee or officer of the Company or an Affiliate that is itself a
party to such transaction or series of transactions or an Affiliate of a party
to such transaction or series of related 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 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 Section 10.15
and Section 10.10 hereof 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 Section 10.15 and Section 10.10 hereof described above
and at all times subject to the covenant in Section 10.13 hereof.
"Escrow Account" means an escrow account established under the
Escrow Agreement for the deposit of a portion of the net proceeds from the
sale of the Notes (the "Initial Escrow Amount"), and the proceeds from the
investment thereof.
"Escrow Agent" means The Chase Manhattan Bank, as Escrow Agent
pursuant to the Escrow Agreement until a successor escrow agent replaces it in
accordance with the provisions of the Escrow Agreement and thereafter means
such successor.
"Escrow Agreement" means the Escrow and Security Agreement
dated as of October 17, 1997 among the Company, the Trustee and the Escrow
Agent.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"Exchange Notes" means the 10% Senior Notes due 2007, Series B,
to be issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement.
"Exchange Offer" shall have the meaning specified in the
Registration Rights Agreement.
"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. Any Asset Sale pursuant to the terms of the deadlock event
"buy-sell" arrangements in Section 7.8 of the Amended and Restated
Operating Agreement of RCN-BECOCOM, LLC, as in effect on the Issue Date, or
any comparable provisions of any documentation for the PEPCO Joint Venture,
shall be deemed to have been made for Fair Market Value. Unless otherwise
specified in this Indenture, Fair Market Value shall be determined by the
Board acting in good faith and shall be evidenced by a Board Resolution.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States and which are applicable
as of the date of determination and which are consistently applied for all
applicable periods.
"Global Notes" means one or more of the Regulation S Global
Notes and/or the 144A Global Notes.
"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.
"Holder" or "Noteholder" means a person in whose name a Note is
registered in the Note Register.
"Indebtedness" means, with respect to any person, without
duplication, (i) any liability, contingent or otherwise, of such person (A)
for borrowed money (whether or not the recourse of the lender is to the whole
of the assets of such person or only to a portion thereof) or (B) evidenced by
a note, debenture or similar instrument or letter of credit (including a
purchase money obligation) or (C) for the payment of money relating to a
Capitalized Lease Obligation or other obligation relating to the deferred
purchase price of property or (D) in respect of an Interest Rate Obligation or
currency agreement; or (ii) any liability of others of the kind described in
the preceding clause (i) which the person has guaranteed or which is otherwise
its legal liability; or (iii) any obligation secured by a Lien (other than
Liens on Capital Stock or Indebtedness of any Unrestricted Subsidiary) to which
the property or assets of such person are subject, whether or not the
obligations secured thereby shall have been assumed by or shall otherwise be
such person's legal liability (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); (iv) all Disqualified Stock valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends; and (v) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (i), (ii), (iii) or (iv).
In no event shall "Indebtedness" include trade payables and accrued
liabilities that are current liabilities incurred in the ordinary course of
business, excluding the current maturity of any obligation which would
otherwise constitute Indebtedness. For purposes of Section 10.11 and Section
10.13 hereof and the definition of "Events of Default," in determining the
principal amount of any Indebtedness to be incurred by the Company or a
Restricted Subsidiary or which is outstanding at any date, the principal
amount of any Indebtedness which provides that an amount less than the
principal amount at maturity thereof shall be due upon any declaration of
acceleration thereof shall be the accreted value thereof at the date of
determination. Indebtedness of any person that becomes a Restricted
Subsidiary shall be deemed incurred at the time that such a person becomes a
Restricted Subsidiary.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) 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.
"Indenture Obligations" means the obligations of the Company
under this Indenture or under the Notes, to pay principal of, premium, if any,
and interest on the Notes when due and payable, whether at maturity, by
acceleration, call for redemption or repurchase or otherwise, and all other
amounts due or to become due under or in connection with this Indenture or the
Notes and the performance of all other obligations to the Trustee (including,
but not limited to, payment of all amounts due the Trustee under Section 6.07
hereof), the Escrow Agent and the Holders of the Notes under this Indenture,
the Escrow Agreement and the Notes, according to the terms thereof.
"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 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.
"Initial Notes" means the 10% Senior Notes due 2007, Series A,
of the Company.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Salomon Brothers Inc and Xxxxxxxxxx Securities.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"interest," when used with respect to any Note, means the
amount of all interest accruing on such Note, including all additional
interest payable on the Notes pursuant to the Registration Rights Agreement
and all interest accruing subsequent to the occurrence of any events specified
in Sections 5.01(viii), (ix) and (x) hereof or which would have accrued but
for any such event, whether or not such claims are allowable under applicable
law.
"Interest Payment Date" means when used with respect to any
Note, the Stated Maturity of an installment of interest on such Note, as set
forth in such Note.
"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 constitute an Investment
by the Company in such other person.
"Issue Date" means the original date of issuance of the Notes.
"Joint Venture" means any person engaged in a Permitted
Business in which the Company or one of the Restricted Subsidiaries (the "RCN
Partner") owns not less than 50% of the Voting Stock and not less than 50% of
each class of Capital Stock and in respect of which (a) there are no more than
five other beneficial holders of Capital Stock and Voting Stock (the "Other
Partners"), (b) all of its Subsidiaries are wholly owned by such person and
(c) the RCN Partner and the Other Partners have entered into contractual
arrangements that require their joint consent to take actions in respect of any
of the following: (1) the payment or distribution of any dividends, whether
in cash or other property, by such person or any of its Subsidiaries to the
RCN Partner; (2) the making of any advance or loan of any cash or other
property by such person or any of its Subsidiaries to the Company or any of the
Restricted Subsidiaries; (3) the incurrence of any Indebtedness by such person
or any of its Subsidiaries; or (4) any other material operating or financial
decision with respect to the business of such person or any of its
Subsidiaries; provided that customary financial and other restrictive
covenants in any loan or advances made by the RCN Partner and the Other
Partners to such person or any of its Subsidiaries and not entered into with
the purpose of influencing the management of such person or any of its
Subsidiaries shall not, by itself, cause such person to not constitute a Joint
Venture.
"Kiewit Holders" means Xxxxx Xxxxxx Sons' Inc., Kiewit
Diversified Group, Inc. and Kiewit Telecom Holdings, Inc. and any of their
respective controlled Affiliates.
"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.
"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), but shall, in any event, include (x) any Guarantor
or (y) any Restricted Subsidiary of the Company which, at any date of
determination, is an obligor under any Indebtedness in an aggregate principal
amount equal to or exceeding $10.0 million.
"Maturity Date" means, with respect to any Note, the date
specified in such Note as the fixed date on which the principal of such Note
is due and payable.
"Moody's" means Xxxxx'x Investors Service.
"Net Cash Proceeds" means, 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 to the first sentence of Section
10.15 hereof) 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 or any Restricted Affiliate) 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 or any Restricted Affiliate)
owning a beneficial interest in or having a Permitted Lien on the assets
subject to the Asset Sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary or any Restricted Affiliate, 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 or any Restricted Affiliate, 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.
"New Joint Venture" means any Joint Venture (excluding in any
event the BECO Joint Venture and the PEPCO Joint Venture) formed after the
Issue Date and in which no Investment has been made on or prior to the Issue
Date.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" shall have the meaning specified in the recitals of
this Indenture.
"Offering Memorandum" means the Offering Memorandum dated
October 10, 1997 pursuant to which the Notes were offered.
"Officer" means, with respect to the Company, the Chairman of
the Board, a Vice Chairman, the President, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer, of the Company and delivered to the Trustee.
"144A Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel who may
be counsel for the Company or the Trustee, and who shall be reasonably
acceptable to the Trustee.
"Other Partners" has the meaning set forth in the definition of
"Joint Venture."
"Other Senior Debt Pro Rata Share" means the amount of the
applicable Excess Proceeds obtained by multiplying the amount of such Excess
Proceeds by a fraction, (i) the numerator of which is the aggregate accreted
value and/or principal amount, as the case may be, of all Indebtedness (other
than (x) the Notes and (y) Subordinated Indebtedness) of the Company
outstanding at the time of the applicable Asset Sale with respect to which the
Company is required to use Excess Proceeds to repay or make an offer to
purchase or repay and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of all Notes outstanding at the time of the offer to
purchase or repay with respect to the applicable Asset Sale and (b) the
aggregate principal amount or the aggregate accreted value, as the case may
be, of all other Indebtedness (other than Subordinated Indebtedness) of the
Company outstanding at the time of the applicable Asset Sale Offer with
respect to which the Company is required to use the applicable Excess Proceeds
to offer to repay or make an offer to purchase or repay.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Affiliate
thereof) in trust or set aside and segregated in trust by the Company
or any Affiliate thereof (if the Company or such Affiliate shall act
as Paying Agent) for the Holders of such Notes; provided, however,
that if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Notes with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four, to the
extent provided in Sections 4.02 and 4.03 hereof; and
(d) Notes 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 the Notes are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. The Company
shall notify the Trustee, in writing, when it repurchases or otherwise acquires
Notes, of the aggregate principal amount of such Notes so repurchased or
otherwise acquired. Notes so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company or any other obligor upon the Notes or any
Affiliate of the Company or such other obligor. If the Paying Agent holds, in
its capacity as such, on any Maturity Date or on any optional redemption date
money sufficient to pay all accrued interest and principal with respect to
such Notes payable on that date and is not prohibited from paying such money
to the Holders thereof pursuant to the terms of this Indenture, then on and
after that date such Notes cease to be Outstanding and interest on them ceases
to accrue. Notes may also cease to be Outstanding to the extent expressly
provided in Article Four.
"PEPCO Joint Venture" means the joint venture to be formed
pursuant to the binding letter of intent dated August 1, 1997 between RCN
Telecom Services, Inc. and Potomac Capital Investment Corporation.
"Permitted Business" means any telecommunications business
(including, without limitation, the development and provision of voice, video
and data transmission products, services and systems), and any business
reasonably related to the foregoing.
"Permitted Credit Facility" means (i) any senior commercial
term loan and/or revolving credit facility (including any letter of credit
subfacility) entered into principally with commercial banks and/or other
financial institutions typically party to commercial loan agreements and (ii)
any senior credit facility entered into with any vendor or supplier (or any
financial institution acting on behalf of or for the purpose of directly
financing purchases from such vendor or supplier) to the extent the
Indebtedness thereunder is incurred for the purpose of financing the cost
(including the cost of design, development, construction, manufacture or
acquisition) of personal property or fixtures, used, or to be used, in a
Permitted Business.
"Permitted Indebtedness" means the following Indebtedness (each
of which shall be given independent effect):
(a) Indebtedness under the Notes, this Indenture and the
Senior Discount Notes Indenture;
(b) Indebtedness of the Company and/or any Restricted
Subsidiary and/or any Restricted Affiliate outstanding on the Issue Date;
(c) (i) Indebtedness of any Restricted Subsidiary or
Restricted Affiliate owed to and held by the Company or a Restricted
Subsidiary or Restricted Affiliate and (ii) Indebtedness of the
Company, not secured by any Lien, owed to and held by any Restricted
Subsidiary or Restricted Affiliate; provided that an incurrence of
Indebtedness shall be deemed to have occurred upon (x) any sale or
other disposition (excluding assignments as security to financial
institutions) of any Indebtedness of the Company or a Restricted
Subsidiary or Restricted Affiliate referred to in this clause (c) to a
person (other than the Company or a Restricted Subsidiary or
Restricted Affiliate) or (y) any sale or other disposition by the
Company or any Restricted Subsidiary of Capital Stock of a Restricted
Subsidiary or Restricted Affiliate, or Designation of an Unrestricted
Subsidiary or JV Revocation of a Restricted Affiliate, which holds
Indebtedness of the Company or another Restricted Subsidiary or
Restricted Affiliate such that such Restricted Subsidiary or
Restricted Affiliate, in any such case, ceases to be a Restricted
Subsidiary or Restricted Affiliate, as the case may be;
(d) Interest Rate Obligations of the Company and/or any
Restricted Subsidiary and/or any Restricted Affiliate relating to
Indebtedness of the Company and/or such Restricted Subsidiary and/or
Restricted Affiliate, as the case may be (which Indebtedness (x) bears
interest at fluctuating interest rates and (y) is otherwise permitted
to be incurred under Section 10.11 hereof), 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 and/or any Restricted Affiliate in respect of performance
bonds of the Company or any Restricted Subsidiary or Restricted
Affiliate or surety bonds provided by the Company or any Restricted
Subsidiary or Restricted Affiliate incurred in the ordinary course of
business;
(f) Indebtedness of the Company and/or any Restricted
Subsidiary and/or any Restricted Affiliate to the extent it represents
a replacement, renewal, refinancing or extension (a "Refinancing") of
outstanding Indebtedness of the Company and/or any Restricted
Subsidiary and/or any Restricted Affiliate incurred or outstanding
pursuant to clause (a), (b), (g), or (h) of this definition or the
proviso of Section 10.11 hereof, provided that (1) Indebtedness of
the Company may not be Refinanced to such extent under this clause (f)
with Indebtedness of any Restricted Subsidiary or Restricted
Affiliate, (2) Indebtedness of a Restricted Affiliate may not be
Refinanced with Indebtedness of the Company or a Restricted Subsidiary
in an amount exceeding the RCN Share of such Indebtedness and (3) 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) Buildout Indebtedness (including under one or more
Permitted Credit Facilities); provided that no Indebtedness may be
incurred under this clause (g) on any date on or after October 15,
2002;
(h) Indebtedness of the Company and/or any Restricted
Subsidiary and/or any Restricted Affiliate incurred under one or more
Permitted Credit Facilities, and any Refinancings (whether an initial
Refinancing or one or more successive Refinancings) of the foregoing
otherwise incurred in compliance with clause (f), such that the
aggregate principal amount of the Indebtedness of the Company and the
Restricted Subsidiaries and the RCN Share of any Indebtedness of a
Restricted Affiliate does not exceed $150 million at any time
outstanding; provided, however, such amount shall be increased to $200
million if the Company shall designate as a Restricted Affiliate
pursuant to Section 10.22 a Joint Venture formed to develop a
Permitted Business in a Metropolitan Statistical Area which contains
greater than 400,000 households;
(i) Subordinated Indebtedness of any Restricted Affiliate
owed to and held by any of the Other Partners in such Restricted
Affiliate to the extent (x) such Indebtedness is incurred to fund the
proportionate share (based upon equity ownership) of the Company or
any Restricted Subsidiary of any mandatory capital call made by such
Restricted Affiliate and in respect to which the Company or such
Restricted Subsidiary has defaulted and (y) such Indebtedness is not
secured by any Lien; and
(j) in addition to the items referred to in clauses (a)
through (i) above, Indebtedness of the Company and/or the Restricted
Subsidiaries having an aggregate principal amount not to exceed $10
million at any time outstanding.
"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
10.11 hereof; and (d) Investments in the Company or any Restricted Subsidiary
or Investments made in any person as a result of which such person becomes a
Restricted Subsidiary.
"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.
"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.
"Private Exchange Notes" shall have the meaning specified in
the Registration Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of
the legend initially set forth in the Notes in the form set forth on Exhibit
A-1.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"RCN Share" means, with respect to the Indebtedness of any
Restricted Affiliate, an amount of such Indebtedness determined by reference
to the percentage common equity interest of the Company and the Restricted
Subsidiaries in such Restricted Affiliate.
"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.
"Refinancing" has the meaning set forth in clause (f) of the
definition of "Permitted Indebtedness."
"Registrable Securities" shall have the meaning specified in
the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of October 17, 1997 by and among the Company and the
Initial Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified
in the Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Restricted Affiliate" means any Joint Venture designated as
such pursuant to and in compliance with Section 10.22 hereof until an
effective JV Revocation in respect thereof has been made.
"Restricted Affiliate Group" means, collectively, any
Restricted Affiliate whose Capital Stock is owned directly by the Company or a
Restricted Subsidiary and all of its Subsidiaries.
"Restricted Note" means a Note that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution on Capital
Stock of the Company or any payment made to the direct or indirect holders (in
their capacities as such) of Capital Stock of the Company other than dividends
or distributions payable solely in Capital Stock (other than Disqualified
Stock) of the Company or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Stock) of the Company; (ii) the
purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company (other than any such Capital Stock owned by the
Company or a Wholly Owned Restricted Subsidiary); (iii) the purchase,
redemption, defeasance or other acquisition or retirement for value prior to
any scheduled repayment, sinking fund or maturity of any Subordinated
Indebtedness (other than any Subordinated Indebtedness held by a Wholly Owned
Restricted Subsidiary); or (iv) the making by the Company or any Restricted
Subsidiary or any Restricted Affiliate of any Investment (other than a
Permitted Investment) in any person.
"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 10.21 hereof. 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.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such
time.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Senior Debt Securities" means any unsubordinated debt
securities (including any guarantee of such securities) issued by the Company
and/or any Restricted Subsidiary and/or any Restricted Affiliate, whether in a
public offering or a private placement; it being understood that the term
"Senior Debt Securities" shall not include any Permitted Credit Facility or
other commercial bank borrowings or similar borrowings, recourse transfers of
financial assets, capital leases or other types of borrowings issued in a
manner not customarily viewed as a "securities offering."
"Senior Discount Notes" means the 11 1/8% Senior Discount Notes
due 2007 of the Company.
"Senior Discount Notes Indenture" means the indenture governing
the Senior Discount Notes dated as of October 17, 1997, by and between the
Company and The Chase Manhattan Bank, as Trustee, as amended or supplemented
from time to time.
"Special Record Date" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07
hereof.
"Stated Maturity" means, with respect to any Note or any
installment of interest thereon, the dates 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, is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the
Company or any Guarantor which is expressly subordinated in right of payment
to any other Indebtedness of the Company or such Guarantor; provided that, for
purposes of Section 10.16 and Section 10.18, "Subordinated Indebtedness" means
any Indebtedness of the Company or any Restricted Subsidiary or Restricted
Affiliate that is expressly subordinated in right of payment to any other
Indebtedness of such person.
"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. In no event shall "Subsidiary" include
any Joint Venture.
"Total Affiliate Indebtedness" means, at any date of
determination, with respect to any Restricted Affiliate, the aggregate
consolidated amount of all Indebtedness of such Restricted Affiliate and its
Subsidiaries outstanding as of the date of determination.
"Total Consolidated Indebtedness" means, at any date of
determination, an amount equal to the sum of (i) the aggregate amount of all
Indebtedness of the Company and the Restricted Subsidiaries and (ii) the sum
of the RCN Share of the Indebtedness of each of the Restricted Affiliates, in
each case outstanding as of the date of determination and determined on a
consolidated basis.
"Total Invested Equity Capital" means, at any time of
determination, the sum of, without duplication, (i) $216.6 million plus (ii)
the aggregate cash proceeds received by the Company from capital contributions
in respect of existing Capital Stock (other than Disqualified Stock) or the
issuance or sale of Capital Stock (other than Disqualified Stock but including
Capital Stock issued upon conversion of convertible Indebtedness or from the
exercise of options, warrants or rights to purchase Capital Stock (other than
Disqualified Stock)) on or subsequent to the Issue Date, other than to a
Restricted Subsidiary or to a Restricted Affiliate; plus (iii) the aggregate
cash proceeds received by the Company or any Restricted Subsidiary from the
sale, disposition or repayment of any Investment made after the Issue Date and
constituting a Restricted Payment (other than any Investments made pursuant to
clause (d) of the second paragraph of Section 10.13) in an amount equal to the
lesser of (a) the return of capital with respect to such Investment and (b)
the initial amount of such Investment, in either case, less the cost of the
disposition of such Investment, plus (iv) in the case of the Revocation of the
Designation of a Subsidiary as an Unrestricted Subsidiary, an amount equal to
the consolidated net Investment in such Subsidiary on the date of Revocation
but not in an amount exceeding the net amount of any Investments constituting
Restricted Payments made (or deemed made) in such Subsidiary after the Issue
Date plus (v) in the case of the JV Designation after the Issue Date of a New
Joint Venture as a Restricted Affiliate, an amount equal to the consolidated
net Investment in such New Joint Venture on the date of such JV Designation
but not in an amount exceeding the net amount of any Investments constituting
Restricted Payments made (or deemed made) in such New Joint Venture after the
Issue Date minus (vi) the aggregate amount of all Restricted Payments (other
than Restricted Payments referred to in clause (d) or clause (c)(B) of the
second paragraph of Section 10.13) declared or made on and after the Issue
Date.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
"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 such successor Trustee.
"Unrestricted Notes" means one or more Notes that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A-2, including, without limitation, the Exchange Notes.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 10.21 hereof.
Any such designation may be revoked by a Board Resolution delivered to the
Trustee, subject to the provisions of such covenant.
"U.S. Government Securities" means securities that are direct
non-callable obligations of the United States of America or securities the
timely payment of whose principal and interest is unconditionally guaranteed
by the full faith and credit of the United States of America.
"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.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary of 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 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.05
"Affiliate Transaction" 10.14
"Agent Member" 3.16
"Asset Sale Offer" 10.15
"Asset Sale Offer Purchase Date" 10.15
"assumed liabilities" 10.15
"Change of Control Date" 10.10
"Change of Control Offer" 10.11
"Change of Control Payment Date" 10.11
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"defeasance" 4.02
"Defeased Notes" 4.01
"Designation" 10.21
"Event of Default" 5.01
"Excess Proceeds" 10.15
"incur" 10.11
"insolvent person" 4.04
"JV Designation" 10.22
"JV Revocation" 10.22
"JV Revocation Amount" 10.22
"Note Register" 3.05
"Offer Excess Proceeds" 10.15
"Paying Agent" or "Agent" 3.02
"Physical Notes" 3.03
"Registrar" 3.02
"Replacement Assets" 10.15
"Restricted Period" 3.17
"Revocation" 10.21
"surviving entity" 8.01
"US Designation Amount" 10.21
Section 1.03. 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;
(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 1.04. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such person, or that they be so certified or covered by only one document, but
one such person may certify or give an opinion with respect to some matters
and one or more other persons as to other matters, and any such person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion 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 are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated, with proper identification of each matter covered therein, and
form one instrument.
Section 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution (as provided below
in subsection (b) of this Section 1.05) of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 6.01 hereof) 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 in any reasonable manner
which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind
every future Holder of the same Note or the Holder of every Note
issued upon the transfer thereof or in exchange therefor or in lieu
thereof to the same extent as the original Holder, in respect of
anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 1.06. Notices, etc., to the Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) 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 the Corporate Trust Office, 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Trust
Services, or at any other address previously furnished in writing to the
Holders and the Company by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise expressly provided herein)
hereunder if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at RCN Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx, 00000-0000, Attention: Chief Executive Officer, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise expressly
provided herein) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder 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 when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
Section 1.09. 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 1.10. 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 1.11. Separability Clause.
In case any provision in this Indenture or in the Notes issued
pursuant hereto shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Notes issued pursuant
hereto, express or implied, shall give to any person (other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders) any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation.
Section 1.15. 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 1.16. 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 1.17. Counterparts.
This Indenture may be executed in any number of counterparts
and by telecopier, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
Section 1.18. 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 TWO
NOTE FORMS
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be in substantially the forms set forth, or referenced,
in Exhibit A-1 and Exhibit A-2, respectively, annexed hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any applicable law or with the rules of the
Depository, any clearing agency or any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof.
The definitive Notes shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the officers
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. The terms and provisions contained in
the Notes shall constitute, and are expressly made, a part of this Indenture.
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $225,000,000 in
aggregate principal amount of Notes, except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.10 or 10.15
hereof.
The final Stated Maturity of the Notes shall be October 15,
2007, and the Notes shall bear interest at the rate of 10% 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, payable semi-annually thereafter in arrears on
April 15 and October 15, in each year, commencing on April 15, 1998, to the
Holders of record at the close of business on April 1 and October 1 ,
respectively, immediately preceding such Interest Payment Dates, until the
principal thereof is paid or duly provided for. Interest on any overdue
principal, interest (to the extent lawful) or premium, if any, shall be
payable on demand.
Section 3.02. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New
York) where Notes may be presented for registration of transfer or for exchange
(the "Registrar"), an office or agency (which shall be located in the Borough
of Manhattan in The City of New York, State of New York) where Notes may be
presented for payment (the "Paying Agent" or "Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term "Paying
Agent" or "Agent" includes any additional paying agent. The Company may act
as its own Paying Agent, except for the purposes of payments on account of
principal on the Notes pursuant to Sections 10.10 and 10.15 hereof.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the Trust Indenture Act. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 6.07 hereof.
The Company initially appoints the Trustee as the Registrar and
Paying Agent and agent for service of notices and demands in connection with
the Notes.
Section 3.03. Execution and Authentication.
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 hereto. The
Exchange Notes and the Trustee's certificate of authentication relating
thereto shall be substantially in the form of Exhibit A-2 hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule or usage. The Company shall approve the form of the Notes and any
notation, legend or endorsement thereon. Each Note shall be dated the date of
issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes annexed hereto
as Exhibits A-1 and A-2 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.
Notes offered and sold in reliance on Rule 144A and Notes
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Notes, substantially in the form set forth in
Exhibit A-1, deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided and shall bear the legend set forth in Exhibit B. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Notes issued in exchange for interests in a Global Note
pursuant to Section 3.17 hereof may be issued in the form of permanent
certificated Notes in registered form in substantially the form set forth in
Exhibit A-1 (the "Physical Notes").
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign, and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note was an Officer or Assistant Secretary at the time of such execution but
no longer holds that office or position at the time the Trustee authenticates
the Note, the Note shall nevertheless be valid.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount not to exceed $225,000,000, (ii)
Private Exchange Notes from time to time only in exchange for a like principal
amount of Initial Notes and (iii) Unrestricted Notes from time to time only in
exchange for (A) a like principal amount of Initial Notes or (B) a like
principal amount of Private Exchange Notes, in each case upon a written order
of the Company in the form of an Officers' Certificate of the Company. Each
such written order shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated, whether the Notes are to
be Initial Notes, Private Exchange Notes or Unrestricted Notes and whether
(subject to this Section 3.03) the Notes are to be issued as Physical Notes or
Global Notes and such other information as the Trustee may reasonably request.
The aggregate principal amount of Notes outstanding at any time may not exceed
$225,000,000, except as provided in Section 3.06 hereof.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company and Affiliates of the
Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.04. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the
Company may execute and upon a Company Order the Trustee shall authenticate
and deliver temporary Notes. Temporary Notes shall be substantially in the
form of definitive Notes, in any authorized denominations, but may have
variations that the Company reasonably considers appropriate for temporary
Notes as conclusively evidenced by the Company's execution of such temporary
Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay but in no event
later than the date that the Exchange Offer is consummated. 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 designated for such purpose pursuant to Section 10.02 hereof,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of like tenor and 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 3.05. Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 10.02 hereof
being sometimes referred to herein as the "Note Register") in which, subject
to such reasonable regulations as the Registrar may prescribe, the Company
shall provide for the registration of Notes and of transfers and exchanges of
Notes. The Trustee is hereby initially appointed Registrar for the purpose of
registering Notes and transfers of Notes as herein provided.
When Notes are presented to the Registrar or a co-Registrar
with a request from the Holder of such Notes to register the transfer or
exchange for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested; provided, however, that every Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed or be accompanied
by a written instrument of transfer or exchange in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. Whenever any Notes are so presented for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Holder making the exchange is entitled to receive. No service
charge shall be made to the Noteholder for any registration of transfer or
exchange. The Company may require from the Noteholder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may
be imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 10.10, 10.15 or 9.06 hereof (in
which events the Company will be responsible for the payment of all such taxes
which arise solely as a result of the transfer or exchange and do not depend on
the tax status of the Holder). The Trustee shall not be required to exchange
or register the transfer of any Note for a period of 15 days immediately
preceding the first mailing of notice of redemption of Notes to be redeemed or
of any Note selected, called or being called for redemption except, in the
case of any Note where public notice has been given that such Note is to be
redeemed in part, the portion thereof not to be redeemed.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests
in such Global Notes may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent), and that
ownership of a beneficial interest in the Note shall be required to be
reflected in a book-entry system.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note of any series claims that the Note has been lost, destroyed
or wrongfully taken, the Company shall execute and upon a Company Order, the
Trustee shall authenticate and deliver a replacement Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding if the
Holder of such Note furnishes to the Company and to the Trustee evidence
reasonably acceptable to them of the ownership and the destruction, loss or
theft of such Note and an indemnity bond shall be posted by such Holder,
sufficient in the judgment of the Company or the Trustee, as the case may be,
to protect the Company, the Trustee or any Agent from any loss that any of
them may suffer if such Note is replaced. The Company may charge such Holder
for the Company's expenses in replacing such Note (including (i) expenses of
the Trustee charged to the Company and (ii) any tax or other governmental
charge that may be imposed) and the Trustee may charge the Company for the
Trustee's expenses in replacing such Note.
Every replacement Note issued pursuant to this Section 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 benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07. 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 that Note (or one or more Predecessor Notes) is registered at
the close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and
interest on such defaulted interest at the then applicable interest rate
borne by the Notes, to the extent lawful (such defaulted interest and interest
thereon herein collectively called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the Regular Record Date; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in subsection (a) or (b) below:
(a) 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 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 provided in this
subsection (a). 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 in writing of such Special Record Date.
In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at its address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the persons in whose names the Notes (or
their respective Predecessor Notes) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
subsection (b).
(b) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon
such notice as may be required by such exchange, if, after written
notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection (b), such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 3.08. Persons Deemed Owners.
Prior to and at the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name any Note is registered in the Note Register
as the owner of such Note for the purpose of receiving payment of principal
of, premium, if any, and (subject to Section 3.07 hereof) interest on such
Note and for all other purposes whatsoever, whether or not such Note shall be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled 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 all Notes so delivered shall be promptly canceled by the
Trustee. The Registrar and the Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer or exchange, redemption
or payment. The Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation.
No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section 3.09 hereof, except as expressly
permitted by this Indenture. All canceled Notes held by the Trustee shall be
destroyed and certification of their destruction delivered to the Company
unless by a Company Order the Company shall timely direct that the canceled
Notes be returned to it. The Trustee shall provide the Company a list of all
Notes that have been canceled from time to time as requested by the Company.
Section 3.10. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
date established for the payment of Defaulted Interest or Stated Maturity of
any Note shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of principal, premium, if
any, or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, date established for the payment of
Defaulted Interest or at the Stated Maturity, as the case may be. In such
event, no interest shall accrue with respect to such payment for the period
from and after such Interest Payment Date, Redemption Date, date established
for the payment of Defaulted Interest or Stated Maturity, as the case may be,
to the next succeeding Business Day and, with respect to any Interest Payment
Date, interest for the period from and after such Interest Payment Date shall
accrue with respect to the next succeeding Interest Payment Date.
Section 3.12. CUSIP and CINS Numbers.
The Company in issuing the Notes may use "CUSIP" and "CINS"
numbers (if then generally in use), and if so, the Trustee shall use the CUSIP
or CINS numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP or
CINS number, as the case may be, printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed
on the Notes. The Company shall promptly notify the Trustee in writing of any
change in the CUSIP or CINS number of any type of Notes.
Section 3.13. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal of, premium, if any, or interest on the Notes, and shall notify
the Trustee of any default by the Company in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Company at any time may require the
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Event of Default, upon a Company Order to the Paying Agent, require such
Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 3.14. Treasury Notes.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Responsible Officer of the
Trustee actually knows are so owned shall be so considered. The Company shall
notify the Trustee, in writing, when it or any of its Affiliates repurchases
or otherwise acquires Notes, of the aggregate principal amount of such Notes
so repurchased or otherwise acquired.
Section 3.15. Deposits of Monies.
Prior to 1:00 p.m. New York City time on each Interest Payment
Date, maturity date, Change of Control Payment Date and Asset Sale Offer
Purchase Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date, maturity date, Change of Control Payment
Date and Asset Sale Offer Purchase 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, maturity date, Change of Control Payment Date and Asset
Sale Offer Purchase Date, as the case may be.
Section 3.16. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository, or the Trustee as its custodian,
or under the Global Note, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the 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 Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Sections 3.03 and 3.17
hereof. In addition, Physical Notes shall be transferred to all beneficial
owners, in exchange for their beneficial interests in Global Notes if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Note, or that it will cease to be a "Clearing
Agency" under the Exchange Act, and in either case a successor Depository is
not appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a written
request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and principal amount of authorized
denominations.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount at maturity
of Physical Notes of like tenor of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to this Section 3.16
shall, except as otherwise provided by Section 3.17 hereof, bear the Private
Placement Legend.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 3.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following additional provisions shall apply with respect to the
registration of any proposed transfer of an Initial Note to any Institutional
Accredited Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date; provided, however, that neither
the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act
without registering such Initial Notes thereunder or (y) the
proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto and any legal
opinions and certifications required thereby; and
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the
Registrar of (x) written instructions given in accordance with
the Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of
paragraph (i) above, together with any required legal opinions
and certifications, the Registrar shall register the transfer and
reflect on its books and records the date and a decrease in the
principal amount of the Global Note from which such interests are
to be transferred in an amount equal to the principal amount of
the Notes to be transferred and the Company shall execute and
upon a Company Order, the Trustee shall authenticate Physical
Notes in a principal amount equal to the principal amount of the
Global Note to be transferred.
(b) Transfers to Non-U.S. Persons. The following additional
provisions shall apply with respect to the registration of any proposed
transfer of an Initial Note to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date; provided, however, that neither
the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act
without registering such Initial Notes thereunder or (y) the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto;
(ii) if the proposed transferee is an Agent Member and the
Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in a Regulation S
Global Note upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if
any, required by clause (y) of paragraph (i) above, together with
any required legal opinions and certifications, the Registrar
shall register the transfer and reflect on its books and records
the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal
amount of Physical Notes to be transferred, and the Trustee shall
cancel the Physical Notes so transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the
Registrar of (x) written instructions given in accordance with
the Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of
paragraph (i) above, together with any required legal opinions
and certifications, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in
the principal amount of the Global Note from which such interests
are to be transferred in an amount equal to the principal amount
of the Notes to be transferred and (B) an increase in the
principal amount of the Regulation S Global Note in an amount
equal to the principal amount of the Global Note to be
transferred; and
(iv) until the 41st day after the Issue Date (the
"Restricted Period"), an owner of a beneficial interest in the
Regulation S Global Note may not transfer such interest to a
transferee that is a U.S. person or for the account or benefit of
a U.S. person within the meaning of Rule 902(o) of the Securities
Act. During the Restricted Period, all beneficial interests in
the Regulation S Global Note shall be transferred only through
Cedel or Euroclear, either directly if the transferor and
transferee are participants in such systems, or indirectly
through organizations that are participants.
(c) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Note
to a QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date; provided, however, that neither
the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date and such
transfer can otherwise be lawfully made under the Securities Act
without registering such Initial Note thereunder or (y) such
transfer is being made by a proposed transferor who has checked
the box provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided
for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the
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 QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by
Rule 144A;
(ii) if the proposed transferee is an Agent Member and the
Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the 144A Global
Note, upon receipt by the Registrar of written instructions given
in accordance with the Depository's and the Registrar's
procedures, the Registrar shall register the transfer and reflect
on its book and records the date and an increase in the principal
amount of the 144A Global Note in an amount equal to the
principal amount of Physical Notes to be transferred, and the
Trustee shall cancel the Physical Note so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its books and records the
date and (A) a decrease in the principal amount of the Global
Note from which interests are to be transferred in an amount
equal to the principal amount of the Notes to be transferred and
(B) an increase in the principal amount of the 144A Global Note
in an amount equal to the principal amount of the Global Note to
be transferred.
(d) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement
of Notes bearing the Private Placement Legend, the Registrar shall deliver
only Notes that bear the Private Placement Legend unless (i) the circumstances
contemplated by paragraphs (a)(i)(x) or (b)(i)(x) of this Section 3.17 exist,
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under the
Securities Act.
(e) Other Transfers. If a Holder proposes to transfer a Note
constituting a Restricted Note pursuant to any exemption from the registration
requirements of the Securities Act other than as provided for by Section
3.17(a) and (b) hereof, the Registrar shall only register such transfer or
exchange if such transferor delivers an Opinion of Counsel satisfactory to the
Company and the Registrar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; provided, however, that the
Company may, based upon the opinion of its counsel, instruct the Registrar by
a Company Order not to register such transfer in any case where the proposed
transferee is not a QIB, or a Non-U.S. person or an Institutional Accredited
Investor.
(f) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.16 hereof or this
Section 3.17. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or
Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Notes, elect to have either Section 4.02 or Section
4.03 hereof be applied to all of the Outstanding Notes (the "Defeased Notes"),
upon compliance with the conditions set forth below in this Article Four.
Section 4.02. Defeasance and Discharge.
Upon the Company's exercise under Section 4.01 hereof of the
option applicable to this Section 4.02, the Company shall be deemed to have
been discharged from its obligations with respect to the Defeased Notes on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the Defeased
Notes, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 4.05 and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned (and the
Trustee, at the expense of the Company, and, upon Company Request, 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 Defeased Notes to receive, solely from the trust fund
described in Section 4.04 hereof and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (b) the Company's obligations with respect
to such Defeased Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Sections
4.05 and 6.07 hereof, and (d) this Article Four. Subject to compliance with
this Article Four, the Company may exercise its option under this Section 4.02
notwithstanding the prior exercise of its option under Section 4.03 hereof with
respect to the Notes.
Section 4.03. Covenant Defeasance.
Upon the Company's exercise under Section 4.01 hereof of the
option applicable to this Section 4.03, the Company shall be released from its
obligations under any covenant or provision contained in Sections 10.06
through 10.23 hereof and the provisions of clause (c) of Section 8.01 shall
not apply, with respect to the Defeased Notes, on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased 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 the
Defeased 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 Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article 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 5.01(iii) or (iv) hereof, but, except as
specified above, the remainder of this Indenture and such Defeased Notes shall
be unaffected thereby.
Section 4.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 4.02 or Section 4.03 hereof to the Defeased Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 hereof who shall agree to comply with the
provisions of this Article Four 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) money in an amount, or (b) U.S.
Government Obligations which through the scheduled payment of
principal, premium, if any, and interest in respect thereof in
accordance with their terms will provide, not later than the due date
of any payment, money in an amount, or (c) a combination thereof, in
any such case, sufficient without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge the entire Indebtedness in respect of, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and interest on the
Defeased Notes at the Stated Maturity of such principal or installment
of principal, premium, if any, or interest or (if the Company has made
irrevocable arrangements satisfactory to such Trustee for the giving
of notice of redemption by such Trustee in the name and at the expense
of the Company) the redemption date thereof, as the case may be, in
accordance with the terms of the Indenture and the Notes; provided,
however, that the Trustee shall have been irrevocably instructed to
apply such cash or the proceeds of such U.S. Government Obligations
to said payments with respect to the Notes;
(2) No Default with respect to the Outstanding Notes shall have
occurred and be continuing on the date of such deposit or, insofar as
Section 4.02 hereof is concerned, at any time during the period ending
on the ninety-first day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period) no Default relating to Section 5.01(viii),
(ix) or (x) hereof;
(3) Neither the Company nor any Subsidiary of the Company is an
"insolvent person" within the meaning of any applicable Bankruptcy Law
on the date of such deposit or at any time during the period ending on
the ninety-first day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee for the Notes to have a conflicting interest in violation of
Section 6.08 hereof and for purposes of the Trust Indenture Act with
respect to any securities of the Company;
(5) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound;
(6) In the case of an election under Section 4.02 hereof, 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 the
date hereof, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as
a result of such deposit, defeasance and discharge to be effected with
respect to the Notes and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not
occurred;
(7) In the case of an election under Section 4.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of the deposit and covenant defeasance to be effected with
respect to the Notes and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would have
been the case if such deposit and covenant defeasance had not
occurred;
(8) The Company shall have delivered to the Trustee, an Opinion
of Counsel to the effect that, immediately following the ninety-first
day after the deposit, the trust funds established pursuant to this
Article will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally under any applicable U.S. Federal or
state law;
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to its election under Section 4.02 or 4.03 hereof was not
made by the Company with the intent of preferring the Holders over the
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (i)
all conditions precedent (other than conditions requiring the passage
of time) provided for relating to either the defeasance under Section
4.02 or the covenant defeasance under Section 4.03 (as the case may
be) have been complied with as contemplated by this Section 4.04 and
(ii) if any other Indebtedness of the Company shall then be
outstanding or committed, such defeasance or covenant defeasance will
not violate the provisions of the agreements or instruments evidencing
such Indebtedness; and
(11) Such defeasance or covenant defeasance shall not result in
a trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be registered under the Act or exempt from
registration thereunder.
Opinions required to be delivered under this Section may have
such qualifications as are customary for opinions of the type required and
reasonably acceptable to the Trustee.
Section 4.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous
Provisions.
Subject to the proviso of the last paragraph of Section 10.03,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 4.05, the "Trustee") pursuant to Section 4.04 in
respect of the Defeased 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 (other than the
Company) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee, its officers,
directors, employees and agents and hold them harmless against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.04 or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Defeased Notes.
Anything in this Article Four 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 Obligations held by it as provided in
Section 4.04 which, in the opinion of an internationally recognized firm of
independent public accountants 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 defeasance or covenant
defeasance.
Section 4.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 4.02 or 4.03 hereof, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.02 or 4.03 hereof, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money and U.S.
Government Obligations in accordance with Section 4.02 or 4.03 hereof, as the
case may be; provided, however, that if the Company makes any payment of
principal, premium, if any, or interest on any 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 and
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) 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 such 30 day grace period shall be
inapplicable for the first six interest payments due on the Notes); or
(ii) default in the payment of the principal of, or premium,
if any, on the Notes when due; or
(iii) default in the performance, or breach, of any covenant
described under Section 10.10, Section 10.15 or Article Eight; or
(iv) default in the performance, or breach, of any covenant
in this Indenture (other than defaults specified in clause (i), (ii)
or (iii) above) or the Escrow 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% in aggregate principal amount of the
outstanding Notes (in each case, when such notice is deemed received
in accordance with this Indenture); or
(v) failure to perform any term, covenant, condition or
provision of one or more classes or issues of Indebtedness in an
aggregate principal amount of $10.0 million or more under which the
Company or a Material 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
(vi) any holder of at least $10.0 million in aggregate
principal amount of Indebtedness of the Company or any Material
Restricted Subsidiary shall commence judicial proceedings or take any
other action to foreclose upon or dispose of assets of the Company or
any Material Restricted Subsidiary having an aggregate Fair Market
Value, individually or in the aggregate, of $10.0 million or more or
shall have exercised any right under applicable law or applicable
security documents to take ownership of any such assets in lieu of
foreclosure; provided that, in any such case, the Company or any
Material Restricted Subsidiary shall not have obtained, prior to any
such foreclosure or disposition of assets, a stay of all such actions
that remains in effect; or
(vii) one or more non-appealable judgments, orders or decrees
for the payment of money of $10.0 million or more, either individually
or in the aggregate, shall be entered into against the Company or any
Material 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
(viii) the Company or any Material Restricted Subsidiary of the
Company pursuant to or under or within the meaning of any Bankruptcy
Law;
(A) commences a voluntary case or proceeding;
(B) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any
case against it;
(C) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files an answer or consent seeking reorganization
or relief;
(F) shall admit in writing its inability to pay its
debts generally; or
(G) consents to the filing of a petition in bankruptcy.
(ix) a court of competent jurisdiction in any involuntary
case or proceeding enters a Bankruptcy Order against the Company or
any Material Restricted Subsidiary, and such Bankruptcy Order remains
unstayed and in effect for 60 consecutive days; or
(x) a Custodian shall be appointed out of court
with respect to the Company or any Material Restricted Subsidiary or
with respect to all or any substantial part of the assets or
properties of the Company or any Material Restricted Subsidiary;
(xi) the Company shall assert or acknowledge in writing that
the Escrow Agreement is invalid or unenforceable; or
(xii) the Company shall have failed on the Issue Date to enter
into the Escrow Agreement or pursuant thereto fail to place the
Initial Escrow Amount (as defined in the Escrow Agreement) in the
Escrow Account held by the Escrow Agent for the benefit of the Holders
of the Notes and the Trustee.
Section 5.02. Acceleration of Maturity Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in clause (viii), (ix) or (x) of Section 5.01 hereof with respect to
the Company) occurs and is continuing, then the Trustee or the holders of at
least 25% in principal amount of the Outstanding Notes may, by written notice,
and the Trustee upon the request of the holders of not less than 25% in
principal amount of the outstanding Notes shall, declare the Default Amount of
all Outstanding Notes to be immediately due and payable and upon any such
declaration such amounts shall become immediately due and payable. If an
Event of Default specified in clause (viii), (ix) or (x) above with respect to
the Company occurs and is continuing, then the Default Amount of all
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.
After a declaration of acceleration or any ipso facto
acceleration as related to clause (viii), (ix) or (x) of Section 5.01, the
holders of a majority in aggregate principal amount of Outstanding Notes may,
by notice to the Trustee, rescind such declaration of acceleration and its
consequences if all existing Events of Default, other than nonpayment of the
principal of, and accrued and unpaid interest on, the Notes that has become
due solely as a result of such acceleration, have been cured or waived and if
the rescission of acceleration would not conflict with any judgment or decree.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if an Event of Default specified in
Section 5.01(i), 5.01(ii) or 5.01(iii) (to the extent relating to a payment
required by Section 10.10 or Section 10.15) shall have occurred and be
continuing, 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 principal, premium, if any, and interest, with
interest upon the overdue principal, premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate then borne by the 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 and as trustee of an express trust, may,
but is not obligated under this paragraph to, institute a judicial proceeding
for the collection of the sums so due and unpaid and may, but is not obligated
under this paragraph to, prosecute such proceeding to judgment or final
decree, and may, but is not obligated under this paragraph to, enforce the
same against the Company or any other obligor upon the 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 the Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion, but is not obligated under this paragraph to, (i)
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture by such appropriate private or judicial proceedings as the
Trustee shall deem most effectual to protect and enforce such rights, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted herein or (ii)
proceed to protect and enforce any other proper remedy. No recovery of any
such judgment upon any property of the Company shall affect or impair any
rights, powers or remedies of the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims.
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 of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal 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 overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, 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,
fees, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any Custodian, in any such judicial proceeding, is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay the Trustee as administrative expenses associated with any such
proceeding and, in the event that the Trustee shall consent to the making of
such payments directly to Holders, any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.07 hereof.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture, the
Escrow Agreement 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 and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, fees, 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.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article,
including such amounts held pursuant to the Escrow Agreement, shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for interest;
Third: to Holders for principal and premium, if any, amounts
owing under the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and premium, if any; and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Noteholders pursuant to this
Section 5.06.
Section 5.07. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture 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 Holders or to enforce any right under this Indenture or any Note,
except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Holders.
Section 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive cash payment of the principal of, premium, if any, and (subject to
Section 3.07 hereof) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the respective
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Note and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. 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 Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 5.12. Control by Majority.
The Holders of a majority in 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, however,
that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or the Escrow Agreement or any Note or
expose the Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past Default hereunder and its consequences, except a Default
(a) in the payment of the principal of, or interest on any
Outstanding Note or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected thereby.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of, premium, if any, or interest on any Note
on or after the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on or after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
The Company 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 or any usury or other law wherever enacted, now or at any time hereafter
in force, which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, or interest on the Notes
contemplated herein or in the Notes or which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and 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.
Section 5.16. Unconditional Right of Holders To Receive
Payment.
Notwithstanding any other provision in this Indenture or the
Escrow Agreement and any other provision of any Note, the right of any Holder
of any Note to receive payment of the principal of, premium, if any, and
interest on such Note on or after the respective Stated Maturities (or the
respective Redemption Dates, in the case of redemption) expressed in such
Note, or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the Escrow
Agreement, and no implied covenants or obligations shall be read into
this Indenture and the Escrow Agreement 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 Escrow Agreement; but 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 Escrow
Agreement.
(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 Escrow Agreement 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 Escrow Agreement 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 Escrow Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.01.
Section 6.02. Notice of Defaults.
Within 45 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Note Register, notice of such Default hereunder actually known to a
Responsible Officer of 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, premium, if any, or interest on any Note or in
the case of any Default arising from the occurrence of a Change of Control,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
Section 6.03. Certain Rights of Trustee.
Subject to Section 6.01 hereof and the provisions of Section
315 of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the 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 thereof;
(c) the Trustee may consult with counsel and any 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 in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture or the
Escrow Agreement at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by
the Trustee in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture or the Escrow Agreement other than any liabilities arising
out of its own negligence;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, other evidence of indebtedness or other paper or
document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Notes then
Outstanding; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require indemnity satisfactory to it against such expenses
or liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Company or, if paid
by the Trustee or any predecessor Trustee, shall be repaid by the
Company upon demand; provided, further, the Trustee in its discretion
may make such further inquiry or investigation into such facts or
matters as it may deem 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;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent, custodian or nominee or attorney appointed with due care
by it hereunder;
(h) except with respect to Section 10.01, the Trustee shall
have no duty to inquire as to the performance of the Company's
covenants in Article Ten. In addition, the Trustee shall not be
deemed to have knowledge of any Default or Event of Default except (i)
any Event of Default occurring pursuant to Sections 5.01(i), 5.01(ii)
and 10.01 or (ii) any Default or Event of Default of which the Trustee
shall have received written notification or obtained actual knowledge;
and
(i) if the Trustee is acting in the capacity of Registrar
and/or Paying Agent, then the rights afforded to the Trustee under
this Section 6.03 shall also be afforded to it as Registrar and/or
Paying Agent.
Section 6.04. Trustee Not Responsible for Recitals,
Dispositions of Notes or Application
of Proceeds Thereof.
The recitals contained herein, in the Notes and in the Escrow
Agreement, except the Trustee's certificate of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Escrow Agreement or the Notes except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture and the Escrow Agreement, authenticate the Notes and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1, if any, to be supplied to the
Company are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Notes or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Notes;
Collections; Etc.
The Trustee, any Paying Agent, Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Notes, with the same rights it would have if it were not the
Trustee, Paying Agent, Registrar or such other agent and, subject to Section
6.08 hereof and Sections 310 and 311 of the Trust Indenture Act, may otherwise
deal with the Company and receive, collect, hold and retain collections from
the Company with the same rights it would have if it were not the Trustee,
Paying Agent, Registrar or such other agent.
Section 6.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required herein or by law. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company covenants and agrees: (a) to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust); (b) to reimburse the Trustee and each predecessor Trustee
upon its request for all reasonable expenses, fees, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation, fees, and
the expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ), except any such expense, disbursement or
advance as may arise from its negligence or bad faith; and (c) to indemnify
the Trustee and any of its officers, directors, employees and agents and each
predecessor Trustee for and to hold it harmless against any loss, liability or
expense (including attorneys' fees and expenses incurred in defending
themselves) 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 Escrow Agreement or the trusts hereunder and its duties
hereunder, including enforcement of this Section 6.07. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, fees, disbursements and advances shall constitute an
additional obligation hereunder and shall survive the satisfaction and
discharge of this Indenture. To secure the Company's payment obligations in
this Section 6.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture. The obligations of the Company
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture or the rejection or termination of this Indenture under
bankruptcy law. Such additional indebtedness shall be a senior claim to that
of the Notes upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Notes, and the Notes are hereby subordinated to such senior claim. If the
Trustee renders services and incurs expenses following an Event of Default
under Section 5.01(viii), Section 5.01(ix) or Section 5.01(x) hereof, the
parties hereto and the Holders by their acceptance of the Notes hereby agree
that such expenses are intended to constitute expenses of administration under
any bankruptcy law.
Section 6.08. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and
(2) and which 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 any 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, the Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee, or any trustee or trustees hereinafter
appointed, may at any time resign by giving written notice thereof to the
Company at least 20 Business Days prior to the date of such proposed
resignation. Upon receiving such notice of resignation, the Company shall,
after all monies due and owing have been paid to the Trustee, promptly appoint
a successor trustee by written instrument executed by authority of the Board,
a copy of which shall be delivered to the resigning Trustee and a copy to the
successor Trustee. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 20 Business Days after the
giving of such notice of resignation, the resigning Trustee may, or 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. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in accordance with
Section 6.08 hereof 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
6.09 hereof 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 or rehabilitation, conservation or
liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, the Holder of any Note 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 and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the 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 shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders of the Notes and accepted appointment
in the manner hereinafter provided, the Holder of any Note who has been a bona
fide Holder for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Notes as their names and addresses appear in the Note Register.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 as if
originally named as Trustee hereunder; but, nevertheless, on the written
request of the Company or the successor Trustee, upon payment of amounts due
to it pursuant to Section 6.07, such retiring Trustee shall duly assign,
transfer and deliver to the successor Trustee all moneys and property at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, duties and
obligations of the retiring Trustee. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to the provisions of Section 6.07.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under
this Article.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the successor shall give notice thereof to the
Holders of the Notes, by mailing such notice to such Holders at their
addresses as they shall appear on the Note Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Company fails to give such notice within
10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Company.
Section 6.12. Merger, Conversion, Amalgamation, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated or amalgamated, or any
corporation resulting from any merger, conversion, amalgamation or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided such corporation shall be eligible under this Article Six to
serve as Trustee hereunder.
In case at the time such successor to the Trustee under this
Section 6.12 shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Notes so authenticated; and, in case at that time any
of the Notes shall not have been authenticated, any successor to the Trustee
under this Section 6.12 may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of the Trustee shall
have been authenticated.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders.
(a) The Trustee shall preserve the names and addresses of the
Noteholders 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
Noteholders. 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 Subsection 7.01(b).
Section 7.02. 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 benefited by this Indenture shall have the protection
afforded by Section 312(c) of the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 following the date of this Indenture, the Trustee shall mail to
all Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such May 15, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with the
Company, the SEC and with each stock exchange on which the Notes are listed.
The Company shall notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.04. Reports by Company.
The Company shall:
(a) file with the SEC the copies of annual reports and of the
information, documents and other reports (or copies of such portions
of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) required to be filed with the SEC pursuant to
Section 13 or Section 15 of the Exchange Act, whether or not the
Company has a class of securities registered under the Exchange Act;
(b) file with the Trustee within 15 days after it files or
would be required to file the information specified in subsection (a)
of this Section 7.04 reports and documents with the SEC copies of such
information;
(c) file with the Trustee and the SEC in accordance with
rules and regulations prescribed from time to time by the SEC, such
additional 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
(d) transmit by mail to all Holders, as their names and
addresses appear in the Note Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
subsections (a) and (c) of this Section as may be required by rules
and regulations prescribed from time to time by the SEC.
Notwithstanding anything to the contrary herein, the Trustee
shall have no duty to review information provided pursuant to subsection (b)
of this Section 7.04 for purposes of determining compliance with any
provisions of this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc.,
Only on Certain Terms.
The Company will not (i) consolidate or combine with or merge
with or into or, directly or indirectly, sell, assign, convey, lease, transfer
or otherwise dispose of all or substantially all of its properties and assets
to any person or persons in a single transaction or through a series of
transactions, or (ii) permit any of the Restricted Subsidiaries to enter into
any such transaction or series of transactions if it would result in the
disposition of all or substantially all of the properties or assets of the
Company and the Restricted Subsidiaries on a consolidated basis, unless, in
the case of either (i) or (ii), (a) the Company shall be the continuing person
or, if the Company is not the continuing person, the resulting, surviving or
transferee person (the "surviving entity") shall be a company organized and
existing under the laws of the United States or any State or territory thereof;
(b) the surviving entity shall expressly assume all of the obligations of the
Company under the Notes, the Escrow Agreement and this Indenture, and shall,
if required by law to effectuate such assumption, execute a supplemental
indenture to effect such assumption which supplemental indenture shall be
delivered to the Trustee and shall be in form and substance reasonably
satisfactory to the Trustee; (c) immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
the Company or the surviving entity (assuming such surviving entity's
assumption of the Company's obligations under the Notes and this Indenture),
as the case may be, would be able to incur $1.00 of Indebtedness under clause
(A)(X) of the proviso of Section 10.11; (d) immediately after giving effect to
such transaction or series of transactions on a pro forma basis (including,
without limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
no Default shall have occurred and be continuing; and (e) the Company or the
surviving entity, as the case may be, shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel stating that such transaction or
series of transactions, and, if a supplemental indenture is required in
connection with such transaction or series of transactions to effectuate such
assumption, such supplemental indenture, complies with this covenant and that
all conditions precedent in this Indenture relating to the transaction or
series of transactions have been satisfied.
Section 8.02. Successor Substituted.
Upon any consolidation or merger or any sale, assignment,
conveyance, lease, transfer or other disposition of all or substantially all
of the assets of the Company in accordance with the foregoing in which the
Company or the Restricted Subsidiary, as the case may be, is not the
continuing corporation, the successor corporation formed by such a
consolidation or into which the Company or such Restricted Subsidiary is
merged or to which such transfer is made will succeed to, and be substituted
for, and may exercise every right and power of, the Company or such Restricted
Subsidiary, as the case may be, under this Indenture, the Escrow Agreement and
the Notes with the same effect as if such successor corporation had been named
as the Company or such Restricted Subsidiary therein; and thereafter, except
in the case of (i) any lease or (ii) any sale, assignment, conveyance,
transfer, lease or other disposition to a Restricted Subsidiary of the
Company, the Company shall be discharged from all obligations and covenants
under this Indenture, the Escrow Agreement and the Notes.
For all purposes of this Indenture and the Notes (including the
provision of this Article Eight and Sections 10.11, Section 10.13 and Section
10.16), 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 10.21 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Board, and the Trustee, at any time
and from time to time, may amend, waive, modify or supplement this Indenture
or the Notes for any of the following purposes:
(a) to evidence the succession of another person to the
Company, and the assumption by any such successor of the covenants of
the Company in the Notes;
(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company, herein, in the Notes;
(c) to cure any ambiguity, to correct or supplement any
provision herein, in the Notes which may be defective or inconsistent
with any other provision herein or to make any other provisions with
respect to matters or questions arising under this Indenture or the
Notes; provided, however, that, in each case, such provisions shall
not materially adversely affect the legal rights of the Holders;
(d) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.05 hereof or otherwise;
(e) to mortgage, pledge, hypothecate or grant a security
interest in any property or assets in favor of the Trustee for the
benefit of the Holders as security for the payment and performance of
this Indenture Obligations or to amend, modify or supplement the
Escrow Agreement to insure a first priority perfected security
interest on the Collateral in favor of the Trustee;
(f) to make any other change that does not materially
adversely affect the legal rights of any Holder; or
(g) to add Guarantors with respect to the Notes;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change, agreement or waiver does not materially
adversely affect the legal rights of any Holder.
Section 9.02. Supplemental Indentures, Agreements and Waivers
with Consent of Holders.
With the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes delivered to
the Company and the Trustee, the Company when authorized by a Board
Resolution, together with the Trustee, may amend, waive, modify or supplement
any other provision of this Indenture or the Notes; provided, however, that no
such amendment, waiver, modification or supplement may, without the consent of
the Holder of each Outstanding Note affected thereby:
(i) reduce the principal amount of, change the fixed
maturity of, or alter the redemption provisions of, the Notes, (other
than, subject to clause (vii) below, provisions relating to repurchase
of Notes upon the occurrence of an Asset Sale or a Change at Control),
(ii) change the currency in which any Notes or amounts owing
thereon is payable,
(iii) reduce the percentage of principal amount outstanding
of Notes which must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture or the Notes,
(iv) impair the right to institute suit for the
enforcement of any payment on or with respect to the Notes,
(v) waive a default in payment with respect to the Notes or
any Guarantee,
(vi) reduce the rate or extend the time for payment
of interest on the Notes,
(vii) following the occurrence of a Change of Control or an
Asset Sale, alter the Company's obligation to purchase Notes as a
result thereof in accordance with this Indenture or waive any default
in the performance thereof,
(viii) affect the ranking of the Notes in a manner adverse to
the holder of the Notes,
(ix) release any Guarantor from any of its obligations under
its Guarantee or this Indenture except in compliance with the terms of
this Indenture, or
(x) permit the creation of any Lien (other than the Lien of
the Pledgee) created by the Escrow Agreement or terminate the Lien
created by the Escrow Agreement.
Upon the written request of the Company accompanied by a copy
of a Board Resolution of the Board authorizing the execution of any such
supplemental indenture or other agreement, instrument or waiver, and an
Officer's Certificate and an Opinion of Counsel upon which the Trustee shall
be fully protected in relying as conclusive evidence that such change,
agreement, supplement or waiver is permitted by this Indenture and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture or other agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture
or other agreement, instrument or waiver, but it shall be sufficient if such
Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures,
Agreements and Waivers.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine 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 and an Officers' Certificate
from each obligor under the Notes entering into such supplemental indenture,
agreement, instrument or waiver, each stating that the execution of such
supplemental indenture, agreement, instrument or waiver (a) is authorized or
permitted by this Indenture and (b) does not violate the provisions of any
agreement or instrument evidencing any other Indebtedness of the Company or
any other Subsidiary of the Company. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement,
instrument or waiver which affects the Trustee's own rights, duties or
immunities under this Indenture, the Notes or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture and/or the Notes, if applicable, shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture and/or the Notes, if applicable, as the case may be,
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06. 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 Board, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee upon a Company
Order in exchange for Outstanding Notes.
Section 9.07. Record Date.
The Company may, but shall not be obligated to, fix, a record
date for the purpose of determining the Holders entitled to consent to any
supplemental indenture, agreement or instrument or any waiver, and shall
promptly notify the Trustee of any such record date. If a record date is
fixed those persons who were Holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such supplemental indenture, agreement or instrument or waiver or to revoke
any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
Section 9.08. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note, even if a notation of the consent is not made
on any Note. However, any such Holder, or subsequent Holder, may revoke the
consent as to his Note or portion of a Note if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. An
amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of,
premium, if any, and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
Section 10.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan in The
City of New York, State of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
office of the Trustee at its Corporate Trust Office will be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York, State of New
York) where the Notes may be presented or surrendered for any or all such
purposes, and may from time to time rescind 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 The City of New
York, State of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such other office or agency.
Section 10.03. Money for Note Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Notes, segregate and hold in trust for the benefit of
the Holders entitled thereto a sum sufficient to pay the principal, 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.
If the Company is not acting as Paying Agent, the Company will,
on or before each due date of the principal of, premium, if any, or interest
on, any Notes, deposit with a Paying Agent a sum in same day funds sufficient
to pay the principal, premium, if any, or interest so becoming due, such sum
to be held in trust for the benefit of the Holders entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, 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 will agree with the Trustee,
subject to the provisions of this Section 10.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Notes in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;
(b) 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, premium, if any, or interest on the Notes;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights
and liabilities of 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 such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent will be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company upon receipt of a Company Request therefor, or
(if then held by the Company) will be discharged from such trust; and the
Holder of such Note will 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, will thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, at the
option of the Company in the New York Times or the Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
repaid to the Company.
Section 10.04. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory), licenses and franchises
of the Company and each of the Restricted Subsidiaries; provided, however,
that the Company will not be required to preserve any such right, license or
franchise if the Board shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries as a whole and that the loss thereof is not adverse in
any material respect to the Holders; provided, further, that the foregoing
will not prohibit a sale, transfer or conveyance of a Subsidiary of the
Company or any of its assets in compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed (i) upon the Company or
any of its Restricted Subsidiaries or (ii) upon the income, profits or
property of the Company or any of the Restricted Subsidiaries and (b) all
material lawful claims for labor, materials and supplies, which, if unpaid,
could reasonably be expected to become a Lien upon the property of the Company
or any of the Restricted Subsidiaries; provided, however, that the Company
will not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim (x) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted or (y) if the failure to so pay, discharge
or cause to be paid or discharged could not reasonably be expected to have a
Material Adverse Effect (as defined in the Purchase Agreement).
Section 10.06. Maintenance of Properties.
The Company shall cause all material properties owned by the
Company or any of the Restricted Subsidiaries or used or held for use in the
conduct of their respective businesses to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the 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 10.06 will prevent the Company 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 of the Restricted Subsidiaries and is not disadvantageous in
any material respect to the Holders.
Section 10.07. Insurance.
The Company shall at all times keep all of its and the
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company in good faith to be financially sound
and responsible, against loss or damage to the extent that property of similar
character is usually and customarily so insured by corporations similarly
situated and owning like properties.
Section 10.08. Books and Records.
The Company shall keep proper books of record and account, in
which full and correct entries will be made of all financial transactions and
the assets and business of the Company and each Restricted Subsidiary and each
Restricted Affiliate of the Company in material compliance with GAAP.
Section 10.09. Provision of Financial Statements.
The Company shall file with the SEC (so long as the SEC will
accept any such filings, the Trustee and the Initial Purchasers the annual
reports, quarterly reports and other documents required to be filed with the
SEC pursuant to Sections 13 and 15 of the Exchange Act, whether or not the
Company has a class of securities registered under the Exchange Act. The
Company will also comply with the other provisions of Section 314(a) of the
Trust Indenture Act.
Section 10.10. Change of Control.
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, to any Change of Control Payment Date.
Notice of a Change of Control Offer shall be given to Holders and the Trustee
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 on the Change of
Control Payment Date. Failure to mail the notice of a 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 5.01(iv).
Notice of a Change of Control Offer shall be mailed by the
Company not more than 20 Business Days after the Change of Control Date to the
Holders of Notes at their last registered addresses with a copy to the Trustee
and the Paying Agent. The Change of Control Offer shall remain open from the
time of mailing for at least 20 Business Days and until 5:00 p.m., New York
City time, on the Change of Control Payment Date. The notice, which shall
govern the terms of the Change of Control Offer, shall include such
disclosures as are required by law and shall state:
(a) that the Change of Control Offer is being made pursuant
to this Section 10.10 and that all Notes tendered into the Change of
Control Offer will be accepted for payment;
(b) the purchase price (including the amount of accrued
interest, if any) for each Note, the Change of Control Payment Date
and the date on which the Change of Control Offer expires;
(c) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment
of the purchase price, any Note accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(e) that Holders electing to have Notes purchased pursuant
to a Change of Control Offer will be required to surrender their Notes
to the Paying Agent at the address specified in the notice prior to
5:00 p.m., New York City time, on the Change of Control Payment Date
and must complete any form letter of transmittal proposed by the
Company and acceptable to the Trustee and the Paying Agent;
(f) that Holders of Notes will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part
will be issued Notes of like tenor equal in principal amount to the
unpurchased portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Notes; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
SEC pursuant to the Exchange Act (or, if the Company is not required
to file any such reports with the SEC, the comparable reports prepared
pursuant to Section 10.09), a description of material developments in
the Company's business, information with respect to pro forma
historical financial information after giving effect to such Change of
Control and such other information concerning the circumstances and
relevant facts regarding such Change of Control and Change of Control
Offer as would, in the good faith judgment of the Company, be material
to a Holder of Notes in connection with the decision of such Holder as
to whether or not it should tender Notes pursuant to the Change of
Control Offer.
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. Except as described above with
respect to a Change of Control, this Indenture does not contain provisions
that permit the Holders to require that the Company repurchase or redeem the
Notes in the event of a takeover, recapitalization or similar transaction
which may be highly leveraged. If a Change of Control Offer is made, there
can be no assurance that the Company will have available funds sufficient to
pay for all of the Notes that might be delivered by holders of Notes seeking
to accept the Change of Control Offer. 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.
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 10.10, the Company will comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 10.10 by virtue thereof.
Section 10.11. Limitation on Additional Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary or Restricted Affiliate to, directly or indirectly, create, incur,
assume, issue, guarantee or in any manner become directly or indirectly liable
for or with respect to, contingently or otherwise, the payment of
(collectively to "incur") any Indebtedness (including any Acquired
Indebtedness), except for Permitted Indebtedness; provided, that (A)(i) the
Company will be permitted to incur Indebtedness (including Acquired
Indebtedness and Buildout Indebtedness) and (ii) a Restricted Subsidiary or
Restricted Affiliate will be permitted to incur Acquired Indebtedness or
Buildout Indebtedness, if, in either case, immediately after giving pro forma
effect to such incurrence (including the application of the net proceeds
therefrom), either (X) the ratio of Total Consolidated Indebtedness to
Consolidated Pro Forma Operating Cash Flow would not be greater than or equal
to 5.5 to 1.0 if such Indebtedness is incurred prior to October 15, 2000 or 5.0
to 1.0 if such Indebtedness is incurred on or after October 15, 2000 or (Y)
the ratio of Total Consolidated Indebtedness to Total Invested Equity Capital
would not exceed 2.0 to 1.0 and (B) on or after October 15, 2002, a Restricted
Affiliate will be permitted to incur Acquired Indebtedness or Buildout
Indebtedness, if, after giving pro forma effect to such incurrence (including
the application of the net proceeds therefrom), the ratio of Total Affiliate
Indebtedness to Affiliate Pro Forma Operating Cash Flow of such Restricted
Affiliate would not be greater than or equal to 4.0 to 1.0.
For purposes of determining compliance with this Section 10.11,
in the event that an item of Indebtedness meets the criteria of more than one
of the types of Indebtedness permitted by this covenant, the Company in its
sole discretion shall classify such item of Indebtedness and only be required
to include the amount of such Indebtedness as one of such types.
Section 10.12. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by the chairman or a chief executive officer, the
principal financial officer or principal accounting officer of the Company,
stating (i) that a review of the activities of the Company during the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and the Escrow
Agreement, and (ii) that, to the knowledge of each officer signing such
certificate, the Company has kept, observed, performed and fulfilled each and
every covenant and condition contained in this Indenture and the Escrow
Agreement and is not in default in the performance or observance of any of
the terms, provisions, conditions and covenants hereof (or, if a Default shall
have occurred, describing all such Defaults of which such officers may have
knowledge, their status and what action the Company is taking or proposes to
take with respect thereto). When any Default under this Indenture or a
default under the Escrow Agreement has occurred and is continuing, or if the
Trustee or any Holder or the trustee for or the holder of any other evidence
of Indebtedness of the Company or any Restricted Subsidiary gives any notice
or takes any other action with respect to a claimed default (other than with
respect to Indebtedness (other than Indebtedness evidenced by the Notes) in
the principal amount of less than $1.0 million), the Company will promptly
notify the Trustee of such Default, notice or action and will deliver to the
Trustee by registered or certified mail or by telegram, or facsimile
transmission followed by hard copy by registered or certified mail 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 10.13. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of the
Restricted Subsidiaries or Restricted Affiliates to, make, directly or
indirectly, any Restricted Payment unless:
(i) no Default shall have occurred and be
continuing at the time of or upon giving effect to such Restricted
Payment;
(ii) immediately after giving effect to such Restricted
Payment, the Company would be able to incur $1.00 of Indebtedness
under clause (A)(X) of the proviso of Section 10.11 hereof; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made on or after the Issue Date and all Designation Amounts does not
exceed an amount equal to the sum of, without duplication, (a) 50% of
the cumulative Consolidated Net Income accrued on a cumulative basis
during the period beginning on October 1, 1997 and ending on the last
day of the fiscal quarter of the Company immediately preceding the
date of such proposed Restricted Payment (or, if such cumulative
Consolidated Net Income for such period is a deficit, minus 100% of
such deficit), plus (b) the aggregate net cash proceeds received by
the Company from the issue or sale (other than to a Restricted
Subsidiary or Restricted Affiliate of the Company) of its Capital
Stock (other than Disqualified Stock) on or after the Issue Date
(including, without duplication, upon exercise of warrants, options or
rights), plus (c) the aggregate net proceeds received by the Company
from the issuance (other than to a Restricted Subsidiary or to a
Restricted Affiliate of the Company) on or after the Issue Date of its
Capital Stock (other than Disqualified Stock) upon the conversion of,
or exchange for, Indebtedness of the Company or a Restricted
Subsidiary, plus (d) in the case of the disposition or repayment of
any Investment constituting a Restricted Payment made other than an
Investment made pursuant to clause (e), (f) or (g) of the following
paragraph made after the Issue Date, an amount equal to the lesser of
the return of capital with respect to such Investment and the cost of
such Investment, in either case, less the cost of the disposition of
such Investment, plus (e) in the case of any Revocation of the
Designation of a Subsidiary as an Unrestricted Subsidiary, an amount
equal to the consolidated net Investment in such Subsidiary on the
date of Revocation but not in an amount exceeding the net amount of
any Investments constituting Restricted Payments made (or deemed made)
in such Subsidiary after the Issue Date plus (f) in the case of the JV
Designation after the Issue Date of a New Joint Venture as a
Restricted Affiliate, an amount equal to the consolidated net
Investment in such New Joint Venture on the date of such JV
Designation but not in an amount exceeding the net amount of any
Investments constituting Restricted Payments made (or deemed made) in
such New Joint Venture after the Issue Date. For purposes of the
preceding clauses (b) and (c) and without duplication, the value of
the aggregate net cash proceeds received by the Company upon the
issuance of Capital Stock either upon the conversion of convertible
Indebtedness or in exchange for outstanding Indebtedness or upon the
exercise of options, warrants or rights will be the net cash proceeds
received upon the issuance of such Indebtedness, options, warrants or
rights plus the incremental amount received by the Company upon the
conversion, exchange or exercise thereof.
For purposes of determining the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property other than
cash shall be valued at its Fair Market Value.
The provisions of this Section 10.13 shall not prohibit (each
of which shall be given independent effect):
(a) the payment of any dividend or other distribution within
60 days after the date of declaration thereof, if at such date of
declaration such payment would comply with the provisions of this
Indenture;
(b) so long as no Default shall have occurred and be
continuing, the purchase, redemption, retirement or other acquisition
of any shares of Capital Stock of the Company (A) in exchange for or
conversion into or (B) out of the net cash proceeds of the
substantially concurrent issue and sale (other than to a Restricted
Subsidiary or to a Restricted Affiliate) of shares of Capital Stock of
the Company (other than Disqualified Stock); provided that any such
net cash proceeds pursuant to the immediately preceding subclause (B)
are excluded from clause (iii)(b) of the preceding paragraph;
(c) so long as no Default shall have occurred and be
continuing, the purchase, redemption, defeasance or other acquisition
or retirement for value of Subordinated Indebtedness made by exchange
for (including any such exchange pursuant to the exercise of a
conversion right or privilege in which cash is paid in lieu of
fractional shares or scrip), or out of the net cash proceeds of, a
substantially concurrent issue or sale (other than to a Restricted
Subsidiary or to a Restricted Affiliate) of (A) Capital Stock (other
than Disqualified Stock) of the Company; provided that any such net
cash proceeds, to the extent so used, are excluded from clause
(iii)(b) of the preceding paragraph, and/or (B) other Subordinated
Indebtedness, having an Average Life to Stated Maturity that is equal
to or greater than the Average Life to Stated Maturity of the
Subordinated Indebtedness being purchased, redeemed, defeased or
otherwise acquired or retired;
(d) so long as no Default shall have occurred and be
continuing, any Investment constituting a Restricted Payment made by
the Company or any Restricted Subsidiary in any Restricted Affiliate
to fund the capital requirements for financing or supporting a
Permitted Business of such Restricted Affiliate;
(e) so long as no Default shall have occurred and be
continuing, Investments constituting a Restricted Payment made by the
Company or any Restricted Subsidiary in any person (including any
Unrestricted Subsidiary or a Restricted Affiliate) in an amount not to
exceed $10 million in the aggregate at any time outstanding;
(f) so long as no Default shall have occurred and be
continuing, the making of a direct or indirect Investment constituting
a Restricted Payment out of the proceeds of the issue or sale (other
than to a Subsidiary or to a Restricted Affiliate) of Capital Stock
(other than Disqualified Stock) of the Company; provided that any such
net cash proceeds are excluded from clause (iii)(b) of the preceding
paragraph; or
(g) so long as no Default shall have occurred and be
continuing, any Investment constituting a Restricted Payment made in
Megacable S.A. de C.V. not to exceed $20 million in the aggregate at
any time outstanding.
Restricted Payments of the type set forth in the preceding
clauses (e) and (g) shall be included in making the determination of available
amounts under clause (iii) of the preceding paragraph to the extent they are
outstanding.
In no event shall a Restricted Payment made on the basis of
consolidated financial statements prepared in good faith in accordance with
GAAP be subject to rescission or constitute a Default by reason of any
requisite subsequent restatement of such financial statements which would have
made such Restricted Payment prohibited at the time that it was made.
Section 10.14. Limitation on Transactions with Affiliates.
The Company shall not, and shall 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 10% 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 $5 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 $10 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. In addition, a
Restricted Affiliate shall not enter into any transaction (or series of related
transactions which are similar or part of a common plan) with or for the
benefit of the Other Partner, unless the terms of such transaction or
transactions are in writing, and are fair and reasonable to such Restricted
Affiliate. 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) transactions among any of the Company or the Restricted
Subsidiaries, on the one hand, and any of the Restricted Affiliates, on the
other hand, provided that such transactions are in the ordinary course of
business and are related to or in furtherance of a Permitted Business, (iv)
dividends paid by the Company pursuant to and in compliance with this Section
10.13, (v) customary directors' fees, indemnification and similar
arrangements, consulting fees, employee salaries bonuses, employment
agreements and arrangements, compensation or employee benefit arrangements or
legal fees and (vi) grants of customary registration rights with respect to
securities of the Company.
Section 10.15. Disposition of Proceeds of Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary or Restricted Affiliate to, make any Asset Sale unless (a) the
Company or such Restricted Subsidiary or such Restricted Affiliate, as the
case may be, 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 (b) at least 75% of such consideration consists of cash or
Cash Equivalents; provided that the amount of any liabilities (other than
Subordinated Indebtedness or Indebtedness of a Restricted Subsidiary that
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 or
Restricted Affiliate, as the case may be, from further liability shall be
treated as cash for purposes of this Section 10.15. The Company or the
applicable Restricted Subsidiary, as the case may be, may (i) apply the Net
Cash Proceeds from any such Asset Sale by the Company or a Restricted
Subsidiary and the Net Cash Proceeds of any Asset Sale by a Restricted
Affiliate to the extent distributed to the Company or a Restricted Subsidiary
within 365 days of the receipt thereof to repay an amount of Indebtedness
(other than Subordinated Indebtedness) of the Company in an amount not
exceeding the Other Senior Debt Pro Rata Share and elect to permanently reduce
the amount of the commitments thereunder by the amount of the Indebtedness so
repaid, (ii) apply the Net Cash Proceeds from such Asset Sale by the Company
or a Restricted Subsidiary and the Net Cash Proceeds of any Asset Sale by a
Restricted Affiliate to the extent distributed to the Company or a Restricted
Subsidiary to repay any Restricted Subsidiary Indebtedness and elect to
permanently reduce the commitments thereunder by the amount of the
Indebtedness so repaid or (iii) apply the Net Cash Proceeds from any Asset Sale
by the Company or a Restricted Subsidiary and the Net Cash Proceeds of any
Asset Sale by a Restricted Affiliate to the extent distributed to the Company
or a Restricted Subsidiary within 365 days thereof, to an investment in
properties and assets that will be used in a Permitted Business (or in Capital
Stock and other securities of any person that will become a Restricted
Subsidiary or Restricted Affiliate as a result of such investment to the
extent such person owns properties and assets that will be used in a Permitted
Business) of the Company or any Restricted Subsidiary ("Replacement Assets").
Notwithstanding anything herein to the contrary, in the event of any Asset
Sale of all or substantially all of the properties or assets of any Restricted
Affiliate Group, whether in a single transaction or series of related
transactions, the Restricted Affiliate Group shall be required to distribute
the Net Cash Proceeds therefrom, after providing for all Indebtedness and
other liabilities of such Restricted Affiliate Group, to the Company or a
Restricted Subsidiary and the Other Partner on a pro rata basis in accordance
with their respective equity interests. Any Net Cash Proceeds from any Asset
Sale that are neither used to repay, and permanently reduce the commitments
under, any Restricted Subsidiary Indebtedness as set forth in clause (ii) of
the preceding sentence or invested in Replacement Assets within the 365-day
period as set forth in clause (iii) shall constitute "Excess Proceeds." Any
Excess Proceeds not used as set forth in clause (i) of the second preceding
sentence shall constitute "Offer Excess Proceeds" subject to disposition as
provided below.
When the aggregate amount of Offer Excess Proceeds equals or
exceeds $10.0 million, the Company shall make an offer to purchase (an "Asset
Sale Offer"), from all Holders issued under this Indenture, that aggregate
principal amount of Notes as can be purchased by application of such Offer
Excess Proceeds at a price in cash equal to 100% of the principal amount
thereof plus, in each case, accrued and unpaid interest, if any, to the
purchase date. Each Asset Sale Offer shall remain open for a period of 20
business days or such longer period as may be required by law. To the extent
that the aggregate purchase price for the applicable issue of Notes tendered
pursuant to an Asset Sale Offer is less than the Offer Excess Proceeds, the
Company or any Restricted Subsidiary may use such deficiency for general
corporate purposes. If the aggregate purchase price for the Notes validly
tendered and not withdrawn by holders thereof exceeds the amount of Notes which
can be purchased with the Offer Excess Proceeds, Notes to be purchased will be
selected on a pro rata basis. Upon completion of such Asset Sale Offer, the
amount of Offer Excess Proceeds shall be reset to zero.
Notwithstanding the two immediately preceding paragraphs, the
Company, the Restricted Subsidiaries and the Restricted Affiliates 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 deemed to be cash under this covenant) 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, any of the
Restricted Subsidiaries or any of the Restricted Affiliates in connection with
any Asset Sale permitted to be consummated under this paragraph shall
constitute Net Cash Proceeds subject to the provisions of the two preceding
paragraphs.
Notice of an Asset Sale Offer shall be mailed by the Company
not more than 20 Business Days after the obligation to make such Asset Sale
Offer arises to the Holders of Notes at their last registered addresses with a
copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain
open from the time of mailing for at least 20 Business Days and until 5:00
p.m., New York City time, on the date fixed for Purchase of Notes validly
tendered and not withdrawn, which date shall be not later than the 30th
Business Day following the mailing of such Asset Sale Offer (the "Asset Sale
Offer Purchase Date"). The notice, which shall govern the terms of the Asset
Sale Offer, shall include such disclosures as are required by law and shall
state:
(a) that the Asset Sale Offer is being made pursuant to
this Section 10.15 and that the Asset Sale Offer shall remain open for
a period of 20 Business Days or such longer period as may be required
by law;
(b) the purchase price (including the amount of accrued
interest, if any) for each Note, the Asset Sale Offer Purchase Date
and the date on which the Asset Sale Offer expires;
(c) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment
of the purchase price, any Note accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest after the Asset Sale
Offer Purchase Date;
(e) that Holders electing to have Notes purchased pursuant
to an Asset Sale Offer will be required to surrender their Notes to
the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Asset Sale Offer Purchase Date and
must complete any form letter of transmittal proposed by the Company
and acceptable to the Trustee and the Paying Agent;
(f) that Holders of Notes will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Asset Sale Offer Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part
will be issued Notes of like tenor equal in principal amount to the
unpurchased portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Notes; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
required to file any such reports with the SEC, the comparable reports
prepared pursuant to Section 10.24), a description of material
developments in the Company's business, information with respect to
pro forma historical financial information after giving effect to such
Asset Sale and such other information concerning the circumstances and
relevant facts regarding such Asset Sale and Asset Sale Offer as
would, in the good faith judgment of the Company, be material to a
Holder of Notes in connection with the decision of such Holder as to
whether or not it should tender Notes pursuant to the Asset Sale
Offer.
On the Asset Sale Offer Purchase 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 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 Asset Sale Offer not later than the first Business Day
following the Asset Sale Offer Purchase Date.
If the Company is required to make an Asset Sale Offer, the
Company shall comply with all applicable tender offer rules, including to the
extent applicable, Section 14(e) and Rule 14e-1 under the Exchange Act, and
any other applicable securities laws or regulations.
Section 10.16. Limitation on Liens Securing Certain
Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary or Restricted Affiliate to, create, incur, assume or suffer to
exist any Liens of any kind against or upon (i) any property or assets of the
Company or any Restricted Subsidiary or Restricted Affiliate, whether now
owned or hereafter acquired, or any proceeds therefrom, which secure either
(x) Subordinated Indebtedness, unless the Notes are secured by a Lien on such
property, assets or proceeds that is senior in priority to the Liens securing
such Subordinated Indebtedness or (y) Senior Debt Securities, unless the Notes
are equally and ratably secured with the Liens securing the Senior Debt
Securities, or (ii) the Escrow Account other than the Lien in favor of the
Escrow Agent and Trustee.
Section 10.17. Limitation on Business.
The Company shall not, and will not permit any of the
Restricted Subsidiaries or Restricted Affiliates to, engage in a business
which is not substantially a Permitted Business.
Section 10.18. Limitation on Certain Guarantees and
Indebtedness of Restricted Subsidiaries
and Restricted Affiliates.
The Company shall not permit any Restricted Subsidiary or
Restricted Affiliate, directly or indirectly, to assume, guarantee or in any
other manner become liable whether as issuer, guarantor or co-obligor, with
respect to (i) any Subordinated Indebtedness or (ii) any Senior Debt Securities
unless, in each case, such Restricted Subsidiary or Restricted Affiliate
simultaneously executes and delivers a supplemental indenture providing for
the guarantee of payment of the Notes by such Restricted Subsidiary or
Restricted Affiliate, as the case may be, on a basis senior to any such
Subordinated Indebtedness or pari passu with any such Senior Debt Securities,
as the case may be. Each guarantee of the Notes created pursuant to such
provisions is referred to as a "Guarantee" and the issuer of each such
Guarantee, so long as the Guarantee remains outstanding, is referred to as a
"Guarantor."
Notwithstanding the foregoing, in the event of the
unconditional release of any Guarantor from its obligations in respect of the
Indebtedness which gave rise to the requirement that a Guarantee be given,
such Guarantor shall be released from all obligations under its Guarantee. In
addition, upon any sale or disposition (by merger or otherwise) of any
Guarantor by the Company or a Restricted Subsidiary to any person that is not
an Affiliate of the Company or any of the Restricted Subsidiaries which is
otherwise in compliance with the terms of this Indenture and as a result of
which such Guarantor ceases to be a Restricted Subsidiary of the Company such
Guarantor will be deemed to be automatically and unconditionally released from
all obligations under its Guarantee; provided that each such Guarantor is sold
or disposed of in accordance with Section 10.15 hereof.
Section 10.19. Limitation on Issuances and Sales of Preferred
Stock by Restricted Subsidiaries and
Restricted Affiliates.
The Company (i) shall not permit any Restricted Subsidiary to
issue any Preferred Stock (other than to the Company or a Restricted
Subsidiary) and (ii) shall not permit any person (other than the Company or a
Restricted Subsidiary) to own any Preferred Stock of any Restricted
Subsidiary. In addition, the Company (i) shall not permit any Restricted
Affiliate to issue any Preferred Stock (other than (x) to the Company or a
Restricted Subsidiary or (y) to the holders of Common Stock in such Restricted
Affiliate on a pro rata basis based upon their ownership of Common Stock) or
(ii) will not permit any person not referred to in the preceding parenthetical
of clause (i) of this sentence to own any Preferred Stock of any Restricted
Affiliate.
Section 10.20. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted
Subsidiaries or Restricted Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary or Restricted Affiliate 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 or Restricted Affiliate 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 or Restricted Affiliate, (b) pay any
Indebtedness owed to the Company or any Restricted Subsidiary or Restricted
Affiliate, (c) make any Investment in the Company or any other Restricted
Subsidiary or Restricted Affiliate or (d) transfer any of its properties or
assets to the Company or to any Restricted Subsidiary or Restricted Affiliate,
except for (i) any encumbrance or restriction in existence on the Issue Date,
(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
security documentation governing such Lien, (iv) any encumbrance or
restriction applicable to a Restricted Subsidiary or Restricted Affiliate at
the time that it becomes a Restricted Subsidiary or Restricted Affiliate 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 (iv) above; provided that the
terms and conditions of any such encumbrance or restriction are not materially
less favorable to the Holders 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 or
Restricted Affiliate 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 Restricted Affiliate 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
or Restricted Affiliate 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) the provisions of such agreement permit
the payment of interest and principal and mandatory repurchases pursuant to
the terms of this 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 or
Restricted Affiliate, customary restrictions on transactions with affiliates,
and customary subordination provisions governing indebtedness owed to the
Company or any Restricted Subsidiary or Restricted Affiliate.
Section 10.21. Designations of Unrestricted Subsidiaries.
The Company shall 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 this Indenture (a
"Designation") unless:
(a) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(b) except in the case of a Permitted Investment or an
Investment made pursuant to clause (iii) or (iv) of the second
paragraph of Section 10.13 hereof, immediately after giving effect to
such Designation, the Company would be able to incur $1.00 of
Indebtedness under clause (A)(X) of the proviso of Section 10.11
hereof; and
(c) the Company would not be prohibited under this
Indenture from making an Investment at the time of 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
Restricted 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 Section 10.13 hereof for all purposes of this Indenture in the US
Designation Amount. 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 Section 10.13 and
Section 10.14 hereof.
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 this Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions delivered to the Trustee certifying compliance with the foregoing
provisions.
Section 10.22. Designations of Restricted Affiliates.
The Company shall not designate any Joint Venture (other than a
newly created Joint Venture in which no Investment has previously been made)
or any of its Subsidiaries as a "Restricted Affiliate" under this Indenture (a
"JV Designation") unless:
(a) no Default shall have occurred and be continuing at the
time of and after giving effect to such JV Designation; and
(b) all Liens and Indebtedness of such Joint Venture
outstanding immediately following such JV Designation would, if
incurred at such time, have been permitted to be incurred for all
purposes of this Indenture.
Notwithstanding the foregoing, the BECO Joint Venture and the
PEPCO Joint Venture shall initially constitute Restricted Affiliates at the
Issue Date. The Company and the Restricted Subsidiaries shall at all times
maintain a Restricted Affiliate so that it qualifies as a Joint Venture under
clauses (a) and (b) of the definition thereof, unless either (1) the Company
is able to, and does in fact, make an effective JV Revocation under the
provisions set forth below at the time of such event or (2) the Restricted
Affiliate ceases to qualify as a Joint Venture by reason of an Asset Sale by
the Company or a Restricted Subsidiary of all of the Company's or such
Restricted Subsidiary's interest in the Capital Stock of such Restricted
Affiliate to any person other than the Company or a Restricted Subsidiary or
any of their respective Affiliates, which, in the case of this clause (2),
shall be deemed an effective JV Revocation.
The Company shall not revoke any JV Designation of a Joint
Venture as a Restricted Affiliate (a "JV Revocation") unless:
(1) no Default shall have occurred and be continuing at the
time of or after giving effect to such JV Revocation;
(2) except in the case of a Permitted Investment or an
Investment made pursuant to clause (e) or (f) of the second paragraph
of Section 10.13 and except in the case in which the Restricted
Affiliate will become a Restricted Subsidiary, immediately after
giving effect to such JV Revocation, the Company would be able to
incur $1.00 of Indebtedness under the proviso of clause (A)(X) of
Section 10.11 hereof; and
(3) the Company would not be prohibited under the Indenture
from making an Investment at the time of such JV Revocation (assuming
the effectiveness of such JV Revocation) in an amount (the "JV
Revocation Amount") equal to the Fair Market Value of the net
Investment of the Company or any other Restricted Subsidiary in such
Restricted Subsidiary on such date.
In the event of any such JV Revocation, except in the case in
which the Restricted Affiliate will become a Restricted Subsidiary, the
Company shall be deemed to have made an Investment constituting a Restricted
Payment pursuant Section 10.13 for all purposes of this Indenture in the JV
Revocation Amount.
All JV Designations and JV Revocations must be evidenced by
Board Resolutions delivered to the applicable Trustee certifying compliance
with the foregoing provisions.
Section 10.23. 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 will
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with, and an Opinion of Counsel stating
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 such documents, certificates and/or
opinions 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
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.24. Reports.
The Company shall, whether or not it has a class of securities
registered under the Exchange Act, furnish without cost to each Holder (in
sufficient quantities for distribution to beneficial holders) and file with
the Trustee and the SEC, (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, (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 10-Q (or any successor form thereto) under the Exchange Act
with respect to such period and (iii) any current reports on Form 8-K (or any
successor forms) required to be filed under the Exchange Act.
Section 10.25. Escrow Account.
The Company shall, on the date of this Indenture, enter into
the Escrow Agreement and, pursuant thereto, shall place the Initial Escrow
Amount in the Escrow Account held by the Escrow Agent for the benefit of the
Holders of the Notes and the Trustee.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights or registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, on written demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either (a) all 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 3.06 hereof and (ii) Notes for whose payment money has
theretofore been irrevocably deposited or caused to be deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03) have been delivered to the Trustee
for cancellation; or (b) all such Notes not theretofore delivered
to the Trustee for cancellation have become due and payable and
the Company has irrevocably deposited or caused to be deposited
with the Trustee in trust an amount of money in dollars
sufficient to pay and discharge the entire Indebtedness on such
issue of Notes not theretofore delivered to the Trustee for
cancellation, for the principal of, premium, if any, and interest
to the date of such deposit or maturity date of redemption; and
(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; provided, that such Opinion of Counsel may rely, as to
matters of fact, upon an Officers' Certificate.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 4.05 and 6.07 and, if
money shall have been deposited with the Trustee pursuant to subclause (1)(b)
of this Section 11.01, the obligations of the Trustee under Section 11.02 and
the last paragraph of Section 10.03 shall survive.
Section 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 11.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the principal of,
premium, if any, and interest on the Notes for whose payment such money has
been deposited with the Trustee.
ARTICLE TWELVE
REDEMPTION
Section 12.01. Notices to the Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 3
of the Initial Notes or Paragraph 2 of the Exchange Notes, it shall notify the
Trustee of the Redemption Date and principal amount of Notes to be redeemed.
The Company shall notify the Trustee of any redemption at least
45 days before the Redemption Date by an Officers' Certificate, stating that
such redemption will comply with the provisions hereof and of the Notes.
Section 12.02. Selection of Notes To Be Redeemed.
In the event that less than all of the Notes are to be redeemed
at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with any applicable requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not then listed on a national securities exchange (or if the Notes
are so listed but the exchange does not impose requirements with respect to
the selection of debt securities for redemption), on a pro rata basis, by lot
or by such method as the Trustee in its sole discretion shall deem fair and
appropriate; provided, however, that no Notes of a principal amount of $1,000
or less shall be redeemed in part.
The Trustee shall promptly notify the Company and the Registrar
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 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 12.03. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at the address of
such Holder appearing in the Note register maintained by the Registrar.
All notices of redemption shall identify the Notes to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(c) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption
Price plus unpaid interest on the Notes through the Redemption Date,
upon surrender to the Paying Agent of the Notes redeemed;
(d) if any Note is to be redeemed in part, the portion of
the principal amount (equal to $1,000 or any integral multiple
thereof) of such Note to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Note to the
Paying Agent, a new Note or Notes in the aggregate principal amount
equal to the unredeemed portion thereof will be issued without charge
to the Noteholder;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent; and
(f) the CUSIP or CINS number, if any, relating to such
Notes.
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 written
request, by the Trustee in the name and at the expense of the Company.
Section 12.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Notes called for redemption
shall be paid at the Redemption Price plus accrued interest, if any, to the
Redemption Date, but interest installments whose maturity is on or prior to
such Redemption Date will be payable on the relevant Interest Payment Dates to
the Holders of record at the close of business on the relevant record dates
referred to in the Notes.
Section 12.05. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Paying Agent an amount of money in same day funds sufficient to pay
the Redemption Price of, and any accrued interest on, all the Notes or
portions thereof which are to be redeemed on that date, other than Notes or
portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, interest
on the Notes to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Notes are presented for payment, and the
Holders of such Notes shall have no further rights with respect to such Notes
except for the right to receive the Redemption Price plus unpaid interest on
the Notes through the Redemption Date, upon surrender of such Notes. If any
Note called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, and, to the extent lawful, accrued
interest thereon shall, until paid, bear interest from the Redemption Date at
the rate provided in the Notes.
Section 12.06. Notes Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Note which is to be
redeemed in part, 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 that is not redeemed.
ARTICLE THIRTEEN
COLLATERAL AND SECURITY
Section 13.01. Escrow Agreement.
(a) The due and punctual payment of the interest on the Notes
when and as the same shall be due and payable on each 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 Escrow Agreement with respect to the Notes and
the Notes, according to the terms hereunder or thereunder, shall be secured as
provided in the Escrow Agreement which the Company, the Escrow Agent and the
Trustee have entered into simultaneously with the execution of this Indenture.
Upon the acceleration of the maturity of the Notes, the Escrow Agreement will
provide for the foreclosure by the Trustee of the net proceeds of the Escrow
Account. Each Holder of Notes, by its acceptance thereof, consents and agrees
to the terms of the Escrow Agreement (including, without limitation, the
provisions providing for foreclosure and disbursement of 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 Escrow Agent and the Trustee to enter
into the Escrow Agreement and to perform its obligations and exercise its
rights thereunder in accordance therewith. The Company shall deliver to the
Trustee copies of the Escrow Agreement, 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 Escrow Agreement, to assure and confirm to the Trustee
the security interest in the Collateral contemplated by the Escrow Agreement
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 Escrow
Agreement. The Company shall take any and all actions reasonably required to
cause the Escrow Agreement 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 Trustee,
predecessor trustees, and 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.
(b) The Escrow Agreement shall further provide that in the
event a portion of the Notes has been retired by the Company, depending upon
the amount available in the Escrow Account, funds representing the interest
payments which have not previously been made on such retired Notes shall, upon
the written request of the Company to the Escrow Agent and the Trustee, be
paid to the Company upon compliance with the release of collateral provisions
of the TIA and upon receipt of a notice relating thereto from the Trustee.
Section 13.02. Recording and Opinions.
(a) The Company shall furnish to the Trustee promptly after
the execution and delivery of this Indenture (but in no event later than five
Business Days after the Issue Date) an Opinion of Counsel either (i) stating
that in the opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, financing statements
or other instruments necessary to make effective the Lien intended to be
created by the Escrow Agreement and reciting with respect to the security
interests in the Collateral the details of such action, or (ii) stating that
in the opinion of such counsel no such action is necessary to make such Lien
effective.
(b) The Company shall furnish to the Escrow Agent and the
Trustee on April 15, 1998, and on each April 15 and October 15 thereafter
until the date upon which the balance of Available Funds (as defined in the
Escrow Agreement) 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
Escrow Agreement 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 12 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 Escrow
Agreement 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 13.03. Release of Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section
13.03, Collateral may be released from the Lien and security interest created
by the Escrow Agreement only in accordance with the provisions of the Escrow
Agreement.
(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 or other similar law, no Collateral shall be released
from the Lien and security interest created by the Escrow Agreement pursuant
to the provisions of the Escrow Agreement, other than to the Holders pursuant
to the terms thereof, unless there shall have been delivered to the Trustee
the certificate required by Section 13.03(d) and Section 13.04.
(c) At any time when a Default shall have occurred and be
continuing and the maturity of the Notes issued on the Issue Date shall have
been accelerated (whether by declaration or otherwise), no Collateral shall be
released pursuant to the provisions of the Escrow Agreement, and no release of
Collateral in contravention of this Section 13.03(c) shall be effective as
against the Holders of Notes, except for the disbursement of all Available
Funds (as defined in the Escrow Agreement) to the Trustee pursuant to Section
6(b) of the Escrow Agreement.
(d) The release of any Collateral from the Liens and security
interests created by this Indenture and the Escrow Agreement 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 hereof or pursuant to the terms of the Escrow Agreement. 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
Escrow Agreement 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 13.04. 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 Escrow
Agreement, (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 6.01 and Section 6.03, accept as conclusive evidence of compliance
with the foregoing provisions the appropriate statements contained in such
documents and such Opinion of Counsel.
Section 13.05. Authorization of Actions to Be Taken by the
Trustee Under the Escrow Agreement.
Subject to the provisions of Section 6.01 and Section 6.03, 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 Escrow Agreement 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
Escrow Agreement 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).
Section 13.06. Authorization of Receipt of Funds by the
Trustee Under the Escrow Agreement.
The Trustee is authorized to receive any funds for the benefit
of the Holders of Notes disbursed under the Escrow Agreement, and to make
further distributions of such funds to the Holders of Notes according to the
provisions of this Indenture.
Section 13.07. Termination of Security Interest.
Upon the earliest to occur of (i) the date upon which the
balance of Available Funds (as defined in the Escrow Agreement) 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
Article Four and (iv) covenant defeasance pursuant to Article Four, the Trustee
shall, at the written request of the Company, release the Liens pursuant to
this Indenture and the Escrow Agreement upon the Company's compliance with the
provisions of the TIA pertaining to release of collateral.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
RCN CORPORATION
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A-1
[FORM OF NOTE]
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 ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS SECURITY) OR THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER 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-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER 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, THE
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR 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.
RCN CORPORATION
------------
10% SENIOR NOTES DUE 2007, SERIES A
CUSIP No. __________
No. ___________ $
RCN CORPORATION, a corporation incorporated under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor corporation under this Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on October 15, 2007, at the office or
agency of the Company referred to below, and to pay interest thereon on April
15 and October 15 (each an "Interest Payment Date"), of each year, commencing
on April 15, 1998, accruing from the Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, at
the rate of 10% per annum, until the principal hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on April
1 and October 1 (each a "Regular Record Date"), whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice of which shall be given to Holders of Notes not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Note Register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: RCN CORPORATION
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10% Senior Notes due 2007, Series A,
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Trustee
By:
-------------------------------
Authorized Signatory
[REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue of
Notes of the Company designated as its 10% Senior Notes due 2007, Series A
(herein called the "Initial Notes"). The Notes are limited (except as
otherwise provided in this Indenture referred to below) in aggregate principal
amount to $225,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of October 17, 1997, by and between the Company and
The Chase Manhattan Bank, as trustee (herein called the "Trustee," which term
includes any successor Trustee under this Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, the Trustee and the Holders of the
Notes, and of the terms upon which the Notes are, and are to be, authenticated
and delivered. The Notes include the Initial Notes, the Private Exchange
Notes and the Unrestricted Notes (including the Exchange Notes referred to
below), issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement. The Initial Notes and the Unrestricted Notes are treated as
a single class of securities under the Indenture.
All capitalized terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
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
of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as in effect on
the date of the Indenture. Notwithstanding anything to the contrary herein,
the Notes are subject to all such terms, and Holders of Notes are referred to
the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
2. Registration Rights. Pursuant to the Registration Rights
Agreement by and among the Company and the Initial Purchasers, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Note shall have the right to exchange this Note for 10% Senior Notes
due 2007, Series B, of the Company (herein called the "Exchange Notes"), which
have been registered under the Securities Act, in like principal amount and
having identical terms as the Notes (other than as set forth in this
paragraph). The Holders of Notes shall be entitled to receive certain
additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
3. Redemption. The Notes will be redeemable, at the option of
the Company, in whole or in part, on or after October 15, 2002 upon not less
than 30 nor more than 60 days' written notice at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest thereon, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on October 15 of each of the
years indicated below:
Year Percentage
---- ----------
2002.............................. 105.000%
2003.............................. 103.333%
2004.............................. 101.667%
2005 and thereafter............... 100.000%
Notwithstanding the foregoing, in the event that after the
Issue Date and prior to October 15, 2000 the Company issues, in one or more
Public Equity Offerings (as defined) yielding gross cash proceeds of not less
than $30.0 million, the Company may redeem, at its option, up to a maximum of
35% of the initially outstanding aggregate principal amount of the Notes from
the net proceeds thereof at a redemption price equal to 110% of the principal
amount of the Notes, together with accrued and unpaid interest to the date of
redemption; provided that not less than 65% of the originally issued aggregate
principal amount of the Notes would remain outstanding immediately after such
redemption. To effect the foregoing redemption, the Company must mail a
notice of redemption not later than 60 days after the consummation of the
Public Equity Offering that resulted in the requisite gross proceeds. As used
above, "Public Equity Offering" means an underwritten public offering of
Common Stock of the Company effected on a primary basis and registered with
the Commission under the Securities Act.
4. Offers to Purchase. Sections 10.10 and 10.15 of the
Indenture provide that upon the occurrence of a Change of Control and
following certain Asset Sales, and subject to certain conditions and
limitations contained therein, the Company shall make an offer to purchase all
or a portion of the Notes in accordance with the procedures set forth in the
Indenture.
5. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued
and unpaid interest, if any, to and including the date the Notes are paid, may
be declared due and payable in the manner and with the effect provided in the
Indenture.
6. Defeasance. The Indenture contains provisions (which
provisions apply to this Note) for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and related Defaults and Events of Default, in each case upon compliance by
the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Notes at the time Outstanding, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Note and
their consequences. Any such consent or waiver by or on behalf of the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of the Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8. Denominations, Transfer and Exchange. The Notes are
issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York, State of New York, or at
such other office or agency of the Company as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due
presentment of this 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 this Note is registered as the owner hereof for all purposes,
whether or not this Note shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
10. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
RCN CORPORATION, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000-0000.
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to
------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the date two years (or such shorter period of time as
permitted by Rule 144 under the Securities Act or any successor provision
thereunder) after the later of the original issuance date appearing on the
face of this Note (or any Predecessor Note) or the last date on which the
Company or any Affiliate of the Company was the owner of this Note (or any
Predecessor Note), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer
and that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents, including (i) a transferee certificate
substantially in the form of Exhibit C to this Indenture in the
case of a transfer to a non-QIB Accredited Investor or (ii) a
transfer certificate substantially in the form of Exhibit D to
this Indenture in the case of a transfer pursuant to Regulation
S, are being furnished which comply with the conditions of
transfer set forth in this Note and this Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if
the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this Note
in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in
Section 3.16 and Section 3.17 of this Indenture shall have been satisfied.
------------------------------------------------------------------------------
Date: Your signature:
---------- -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
By:
--------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee:
---------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it 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
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such
information and that it 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.
Dated:
---------- -----------------------------
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 10.10 or 10.15 of this Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 10.10 or 10.15 of this Indenture, state the amount:
$
-------
Date: Your signature:
---------- -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
By:
-------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee:
---------------------------
EXHIBIT A-2
RCN CORPORATION
------------
10% SENIOR NOTES DUE 2007, SERIES B
CUSIP No. __________
No. ___________ $
RCN CORPORATION, a corporation incorporated under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor corporation under this Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on October 15, 2007, at the office or
agency of the Company referred to below, and to pay interest thereon on April
15 and October 15 (each an "Interest Payment Date"), of each year, commencing
on April 15, 1998, accruing from the Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, at
the rate of 10% per annum, until the principal hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
April 1 and October 1 (each a "Regular Record Date"), whether or not a
Business Day, as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest
on such defaulted interest at the then applicable interest rate borne by the
Notes, to the extent lawful, shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may be paid to the person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be
fixed by the Trustee, notice of which shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Note Register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: RCN CORPORATION
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10% Senior Notes due 2007, Series B,
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
-------------------------------
Authorized Signatory
[REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue of
Notes of the Company designated as its 10% Senior Notes due 2007, Series B
(herein called the "Initial Notes"). The Notes are limited (except as
otherwise provided in this Indenture referred to below) in aggregate principal
amount to $225,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of October 17, 1997, by and between the Company and
The Chase Manhattan Bank, as trustee (herein called the "Trustee," which term
includes any successor Trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, the Trustee, and the Holders of the
Notes, and of the terms upon which the Notes are, and are to be, authenticated
and delivered. The Notes include the Initial Notes, the Private Exchange
Notes and the Unrestricted Notes (including the Exchange Notes), issued in
exchange for the Initial Notes pursuant to the Registration Rights Agreement.
The Initial Notes and the Unrestricted Notes are treated as a single class of
securities under the Indenture.
All capitalized terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
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
of 1939 (15 U.S.C. Section Section 77aaa-77bbb) (the "TIA"), as in effect on
the date of this Indenture. Notwithstanding anything to the contrary herein,
the Notes are subject to all such terms, and Holders of Notes are referred to
the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
2. Redemption. The Notes will be redeemable, at the option of
the Company, in whole or in part, on or after October 15, 2002 upon not less
than 30 nor more than 60 days' written notice at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest thereon, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on October 15 of each of the
years indicated below:
Year Percentage
---- ----------
2002.............................. 105.000%
2003.............................. 103.333%
2004.............................. 101.667%
2005 and thereafter............... 100.000%
Notwithstanding the foregoing, in the event that after the
Issue Date and prior to October 15, 2000 the Company issues, in one or more
Public Equity Offerings (as defined), yielding gross cash proceeds not less
than $30.0 million, the Company may redeem, at its option, up to a maximum of
35% of the initially outstanding aggregate principal amount of Notes from the
net proceeds thereof at a redemption price equal to 110% of the principal
amount of the Notes, together with accrued and unpaid interest to the date of
redemption; provided that not less than 65% of the originally issued aggregate
principal amount of the Notes would remain outstanding immediately after such
redemption. To effect the foregoing redemption, the Company must mail a
notice of redemption no later than 60 days after the consummation of the
Public Equity Offering that resulted in the requisite gross proceeds. As used
above, "Public Equity Offering" means an underwritten public offering of
Common Stock of the Company effected on a primary basis and registered with
the Commission under the Securities Act.
3. Offers to Purchase. Sections 10.10 and 10.15 of the
Indenture provide that upon the occurrence of a Change of Control and
following certain Asset Sales, and subject to certain conditions and
limitations contained therein, the Company shall make an offer to purchase all
or a portion of the Notes in accordance with the procedures set forth in the
Indenture.
4. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued
and unpaid interest, if any, to and including the date the Notes are paid, may
be declared due and payable in the manner and with the effect provided in the
Indenture.
5. Defeasance. The Indenture contains provisions (which
provisions apply to this Note) for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and related Defaults and Events of Default, in each case upon compliance by
the Company with certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Notes at the time Outstanding, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Note and
their consequences. Any such consent or waiver by or on behalf of the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
7. Denominations, Transfer and Exchange. The Notes are
issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York, State of New York, or at
such other office or agency of the Company as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
presentment of this 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 this Note is registered as the owner hereof for all purposes,
whether or not this Note shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
9. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of this Indenture. Requests may be made to:
RCN CORPORATION, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000-0000.
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to
------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Date: Your signature:
---------- -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
By:
--------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee:
---------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 10.10 or 10.15 of this Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 10.10 or 10.15 of this Indenture, state the amount:
$
----------
Date: Your signature:
---------- -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
By:
--------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee:
---------------------------
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THIS INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS
NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THIS INDENTURE, AND NO TRANSFER OF THIS
NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY
TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THIS
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate
principal amount of the 10% Senior Notes due 2007 (the "Notes") of RCN
Corporation (the "Company"), we confirm that:
1. We understand that the Notes have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and,
unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to (x) the date which is two years
(or such shorter period of time as permitted by Rule 144 under the
Securities Act) after the later of the date of original issue of the
Notes and (y) such later date, if any, as may be required by any
subsequent change in applicable law (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Notes are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under Rule
144A (a "QIB") that purchases for its own account or for the account
of a QIB and to whom notice is given that the transfer is being made
in reliance on Rule 144A, (d) pursuant to offers and sales that occur
outside the United States to "foreign purchasers" (as defined below)
in offshore transactions meeting the requirements of Rule 904 of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act (an "Accredited
Investor") that is purchasing for its own account or for the account
of such an institutional "accredited investor," or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject, in each of the foregoing cases, to any
requirement of law that the disposition of our property or the
property of such investor account or accounts be at all times within
our or their control and to compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale
or other transfer of the Notes is proposed to be made pursuant to
clause (c) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in
the form of this letter to the Trustee, which shall provide, among
other things, that the transferee is an Accredited Investor within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company, the Trustee and the
Transfer Agent and Registrar reserve the right prior to any offer,
sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require
the delivery of an opinion of counsel, certification and/or other
information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Notes for
our own account or for the account of one or more Accredited
Investors, and we are acquiring the Notes for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or the securities laws
of any state of the United States and we have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the
economic risk of our or its investment in the Notes for an indefinite
period.
3. We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion and we and any such account are (a) a QIB,
aware that the sale is being made in reliance on Rule 144A under the
Securities Act, (b) an Accredited Investor, or (c) a person other than
a U.S. person ("foreign purchasers"), which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an
estate or trust) in offshore transactions meeting the requirements of
Rules 903 and 904 of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in order to verify the information
contained in the Offering Memorandum.
5. We are not purchasing the Notes for or on behalf of, and
will not transfer the Notes to, any pension or welfare plan (as
defined in Section 3 of ERISA), except as may be permitted under ERISA
and as described under "Notice to Investors" in the Offering
Memorandum.
6. In the event that we purchase any Notes, we will acquire
Notes having an outstanding principal amount of at least $250,000 for
our own account and $250,000 for each account for which we are acting.
We understand that the Trustee and the Transfer Agent will not
be required to accept for registration of transfer any Notes acquired by us,
except upon presentation of evidence satisfactory to the Company and the
Trustee that the foregoing restrictions on transfer have been complied with.
We further understand that the Notes purchased by us will be in the form of
definitive physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph. We further agree to provide to
any person acquiring any of the Notes from us a notice advising such person
that transfers of such Notes are restricted as stated herein and that
certificates representing such Notes will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are
entitled to rely upon the truth and accuracy of our acknowledgments,
representations and agreements set forth herein, and we agree to notify you
promptly in writing if any of our acknowledgments, representations or
agreements herein cease to be accurate and complete. You are also irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
We represent to you that we have full power to make the
foregoing acknowledgments, representations and agreements on our own behalf
and on behalf of any investor account for which we are acting as fiduciary
agent.
As used herein, the terms "offshore transaction," "United
States" and "U.S. person" have the respective meanings given to them in
Regulation S under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
-------------------------------
Date:
-----------------------------
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:
----------------------------
Address:
--------------------------
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
________________, ____
The Chase Manhattan Bank
Global Trust Services
000 Xxxx 00xx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Department
Re: RCN CORPORATION
(the "Company") 10% Senior Notes due 2007
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate
principal amount of the Securities, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
we represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities;
(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation
or other notice stating that the Securities may be offered and sold
during the restricted period specified in Rule 903(c)(2) or (3), as
applicable, in accordance with the provisions of Regulation S;
pursuant to registration of the Securities under the Securities Act;
or pursuant to an available exemption from the registration
requirements under the Securities Act; and
(7) if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) are applicable thereto, we confirm that
such sale has been made in accordance with such provisions.
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. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------
Authorized Signature
