EXHIBIT 4.2
EXECUTION COPY
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XXXXX 0 XXXXXXXXXXXXXX, XXX.,
Issuer
to
THE BANK OF NEW YORK,
as Trustee
_______________________________________
Indenture
Dated as of February 29, 2000
_______________________________________
$250,000,000
11 1/4% Senior Notes Due 2010
TABLE OF CONTENTS
Page
----
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................ 2
Accreted Value............................................. 3
Acquired Debt.............................................. 3
Act........................................................ 3
Affiliate.................................................. 3
Affiliate Transaction...................................... 4
Agent Member............................................... 4
Asset Disposition.......................................... 4
Attributable Value......................................... 5
Board of Directors......................................... 5
Board Resolution........................................... 5
Business Day............................................... 6
Capital Lease Obligation................................... 6
Capital Stock.............................................. 6
Cash Equivalents........................................... 6
Change of Control.......................................... 7
Change of Control Triggering Event......................... 8
Code....................................................... 8
Commission................................................. 8
Common Stock............................................... 8
Company.................................................... 8
Company Order.............................................. 8
Consolidated Capital Ratio................................. 8
Consolidated Cash Flow Available for
Fixed Charges............................................ 9
Consolidated Income Tax Expense............................ 10
Consolidated Interest Expense.............................. 10
Consolidated Net Income.................................... 10
Consolidated Net Worth..................................... 11
Consolidated Tangible Assets............................... 12
Corporate Trust Office..................................... 12
Credit Agreement............................................ 12
Credit Facilities........................................... 12
Debt........................................................ 12
Default..................................................... 13
Defaulted Interest.......................................... 13
Depository.................................................. 13
Designation................................................. 14
Disqualified Stock.......................................... 14
Disqualified Stock Dividends................................ 14
Dollar Notes................................................ 14
Eligible Receivables........................................ 14
Euro Notes.................................................. 15
European Government Obligation.............................. 15
European Union.............................................. 15
Event of Default............................................ 15
Exchange Act................................................ 15
Exchange Securities......................................... 15
Excess Proceeds............................................. 15
Existing Notes.............................................. 15
Expiration Date............................................. 15
Fair Market Value........................................... 16
Federal Bankruptcy Code..................................... 16
Global Security............................................. 16
Government Securities....................................... 16
Guarantee................................................... 16
Guarantor................................................... 17
Holder...................................................... 17
Incur....................................................... 17
Indenture................................................... 17
Initial Purchasers.......................................... 18
Initial Securities.......................................... 18
Institutional Accredited Investor........................... 18
Institutional Accredited Investor Global Security........... 18
Interest Payment Date....................................... 18
Interest Rate or Currency Protection Agreement.............. 18
Invested Capital............................................ 18
Investment.................................................. 19
Issue Date.................................................. 19
Issue Date Purchase Money Debt.............................. 19
Issue Date Rating........................................... 19
Joint Venture............................................... 20
Lien........................................................ 20
Maturity.................................................... 20
Measurement Date............................................ 20
Xxxxx'x..................................................... 20
Net Available Proceeds...................................... 21
New Convertible Notes....................................... 22
9 1/8% Senior Notes......................................... 22
Non-Global Purchasers....................................... 22
Offer....................................................... 22
Offer to Purchase........................................... 23
Officers' Certificate....................................... 25
Opinion of Counsel.......................................... 26
OECD........................................................ 26
Outstanding................................................. 26
Paying Agent................................................ 27
Permitted Holders........................................... 27
Permitted Interest Rate or Currency Protection Agreement.... 27
Permitted Investments....................................... 28
Permitted Liens............................................. 28
Permitted Telecommunications Capital Asset Disposition...... 29
Person...................................................... 29
Physical Security........................................... 29
Predecessor Security........................................ 30
Preferred Stock............................................. 30
Preferred Stock Dividends................................... 30
Private Exchange Offer...................................... 30
Private Exchange Securities................................. 30
Private Placement Legend.................................... 30
Property.................................................... 30
Proportionate Interest...................................... 31
Purchase Amount............................................. 31
Purchase Date............................................... 31
Purchase Money Debt......................................... 31
Purchase Price.............................................. 31
Qualified Institutional Buyer or QIB........................ 31
Qualified Receivable Facility............................... 31
Rating Agencies............................................. 32
Rating Date................................................. 32
Rating Decline.............................................. 32
Receivables................................................. 32
Redemption Date............................................. 32
Redemption Price............................................ 32
refinancing................................................. 32
Registered Exchange Offer................................... 32
Registration Agreement...................................... 33
Registration Default........................................ 33
Regular Record Date......................................... 33
Regulation S................................................ 33
Regulation S Global Security................................ 33
Required Filing Dates....................................... 33
Responsible Officer......................................... 33
Restricted Payment.......................................... 33
Restricted Subsidiary....................................... 33
Restricted Subsidiary Guarantee............................. 34
Revocation.................................................. 34
Rule 144A................................................... 34
Rule 144A Global Security................................... 34
S&P......................................................... 34
Sale and Leaseback Transaction.............................. 34
Securities.................................................. 35
Securities Act.............................................. 35
Security Register........................................... 35
Shelf Registration Statement................................ 35
Significant Subsidiary...................................... 35
6% Convertible Notes........................................ 35
Special Assets.............................................. 35
Special Interest............................................ 35
Special Record Date......................................... 35
Stated Maturity............................................. 36
Subordinated Debt........................................... 36
Subsidiary.................................................. 37
Telecommunications/IS Assets................................ 37
Telecommunications/IS Business.............................. 38
10 1/2% Senior Discount Notes............................... 38
Trust Indenture Act......................................... 38
TIA......................................................... 38
Trustee..................................................... 38
Unrestricted Subsidiary..................................... 39
Vice President.............................................. 39
Voting Stock................................................ 39
Wholly Owned Subsidiary..................................... 39
SECTION 102. Compliance Certificates and Opinions......................... 39
SECTION 103. Form of Documents Delivered to Trustee....................... 40
SECTION 104. Acts of Holders.............................................. 41
SECTION 105. Notices, etc., to Trustee and Company........................ 43
SECTION 106. Notice to Holders; Waiver.................................... 44
SECTION 107. Effect of Headings and Table of Contents..................... 44
SECTION 108. Successors and Assigns....................................... 44
SECTION 109. Separability Clause.......................................... 45
SECTION 110. Benefits of Indenture........................................ 45
SECTION 111. Governing Law................................................ 45
SECTION 112. Conflict with Trust Indenture Act............................ 45
SECTION 113. Legal Holidays............................................... 46
SECTION 114. No Personal Liability of Directors, Officers, Employees
and Stockholders........................................... 46
SECTION 115. Independence of Covenants.................................... 46
SECTION 116. Exhibits..................................................... 46
SECTION 117. Counterparts................................................. 47
SECTION 118. Duplicate Originals.......................................... 47
ARTICLE TWO SECURITY FORMS
SECTION 201. Forms Generally.............................................. 47
ARTICLE THREE THE SECURITIES
SECTION 301. Title and Terms.............................................. 48
SECTION 302. Denominations................................................ 49
SECTION 303. Execution, Authentication, Delivery and Dating............... 49
SECTION 304. Temporary Securities......................................... 52
SECTION 305. Registration, Registration of Transfer and Exchange.......... 53
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 54
SECTION 307. Payment of Interest; Interest Rights Preserved............... 55
SECTION 308. Persons Deemed Owners........................................ 58
SECTION 309. Cancellation................................................. 59
SECTION 310. Computation of Interest...................................... 59
SECTION 311. CUSIP Number................................................. 59
SECTION 312. Book-Entry Provisions for Global Securities.................. 60
SECTION 313. Special Transfer Provisions.................................. 62
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 69
SECTION 402. Application of Trust Money................................... 70
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default............................................ 71
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 73
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................... 74
SECTION 504. Trustee May File Proofs of Claim............................. 76
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities................................................. 77
SECTION 506. Application of Money Collected............................... 77
SECTION 507. Limitation on Suits.......................................... 78
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 78
SECTION 509. Restoration of Rights and Remedies........................... 79
SECTION 510. Rights and Remedies Cumulative............................... 79
SECTION 511. Delay or Omission Not Waiver................................. 79
SECTION 512. Control by Holders........................................... 80
SECTION 513. Waiver of Past Defaults...................................... 80
SECTION 514. Waiver of Stay or Extension Laws............................. 81
ARTICLE SIX THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................... 81
SECTION 602. Notice of Default............................................. 83
SECTION 603. Certain Rights of Trustee..................................... 83
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Securities.................................................. 85
SECTION 605. May Hold Securities........................................... 85
SECTION 606. Money Held in Trust........................................... 85
SECTION 607. Compensation and Reimbursement................................ 86
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
Interests................................................... 87
SECTION 609. Resignation and Removal; Appointment of Successor............. 87
SECTION 610. Acceptance of Appointment by Successor........................ 90
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business.................................................... 90
ARTICLE SEVEN HOLDERS' LISTS AND
REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................. 92
SECTION 702. Reports by Trustee............................................ 92
SECTION 703. Reports by Company............................................ 92
ARTICLE EIGHT CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.......... 93
SECTION 802. Successor Company Substituted................................. 94
SECTION 803. Guarantor May Consolidate, etc., Only on Certain Terms........ 95
SECTION 804. Successor Guarantor Substituted............................... 97
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........... 98
SECTION 902. Supplemental Indentures With Consent of Holders.............. 99
SECTION 903. Execution of Supplemental Indentures......................... 100
SECTION 904. Effect of Supplemental Indentures............................ 101
SECTION 905. Conformity with Trust Indenture Act.......................... 101
SECTION 906. Reference in Securities to Supplemental Indentures........... 101
SECTION 907. Notice of Supplemental Indentures............................ 101
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest......... 102
SECTION 1002. Maintenance of Office or Agency............................. 102
SECTION 1003. Money for Security Payments to Be Held in Trust............. 103
SECTION 1004. Corporate Existence......................................... 105
SECTION 1005. Maintenance of Properties................................... 105
SECTION 1006. Insurance................................................... 105
SECTION 1007. Reports..................................................... 106
SECTION 1008. Statement by Officers as to Default......................... 107
SECTION 1009. Change of Control Triggering Event.......................... 107
SECTION 1010. Limitation on Consolidated Debt............................. 110
SECTION 1011. Limitation on Debt of Restricted Subsidiaries............... 116
SECTION 1012. Limitation on Restricted Payments........................... 118
SECTION 1013. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries......................... 122
SECTION 1014. Limitation on Liens......................................... 124
SECTION 1015. Limitation on Sale and Leaseback Transactions............... 126
SECTION 1016. Limitation on Asset Dispositions............................ 126
SECTION 1017. Limitation on Issuance and Sales of Capital Stock of
Restricted Subsidiaries................................... 129
SECTION 1018. Transactions with Affiliates................................ 131
SECTION 1019. Limitation on Designations of Unrestricted Subsidiaries..... 133
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption......................................... 136
SECTION 1102. Applicability of Article.................................... 136
SECTION 1103. Election to Redeem; Notice to Trustee....................... 136
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.......... 136
SECTION 1105. Notice of Redemption....................................... 137
SECTION 1106. Deposit of Redemption Price................................ 138
SECTION 1107. Securities Payable on Redemption Date...................... 139
SECTION 1108. Securities Redeemed in Part................................ 139
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasanse................................................ 140
SECTION 1202. Defeasance and Discharge................................... 140
SECTION 1203. Covenant Defeasance........................................ 142
SECTION 1204. Conditions to Defeasance or Covenant Defeasance............ 143
SECTION 1205. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions................. 145
SECTION 1206. Reinstatement.............................................. 146
EXHIBIT A - Form of Security
EXHIBIT B - Form of Supplemental Indenture
ix
INDENTURE, dated as of February 29, 2000 between Level 3 Communications,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and The Bank of New York, a New
York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 11 1/4% Senior
Notes Due 2010 (the "Initial Securities") and, if and when issued pursuant to a
Registered Exchange Offer or Private Exchange Offer pursuant to the Registration
Agreement for the Initial Securities, 11 1/4% Senior Notes Due 2010 (the
"Exchange Securities" and, together with the Initial Securities, the
"Securities"), 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 Securities, 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 their and
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
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For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, including the recitals set forth above,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean United States generally accepted
accounting principles as in effect on the date of this Indenture;
(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, paragraph or other subdivision;
(e) unless otherwise indicated, references to Articles, Sections,
paragraphs or other subdivisions are references to such Articles, Sections,
paragraphs or other subdivisions of this Indenture; and
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(f) "or" is not exclusive and "including" means including without
limitation.
"Accreted Value" of any Debt issued at a price less than the principal
amount at stated maturity, means, as of any date of determination, an
amount equal to the sum of (a) the issue price of such Debt as determined
in accordance with Section 1273 of the Code or any successor provisions
plus (b) the aggregate of the portions of the original issue discount (the
excess of the amounts considered as part of the "stated redemption price at
maturity" of such Debt within the meaning of Section 1273(a)(2) of the Code
or any successor provisions, whether denominated as principal or interest,
over the issue price of such Debt) that shall theretofore have accrued
pursuant to Section 1272 of the Code (without regard to Section 1272(a)(7)
of the Code) from the date of issue of such Debt to the date of
determination, minus all amounts theretofore paid in respect of such Debt,
which amounts are considered as part of the "stated redemption price at
maturity" of such Debt within the meaning of Section 1273(a)(2) of the Code
or any successor provisions (whether such amounts paid were denominated
principal or interest).
"Acquired Debt" means, with respect to any specified Person, (i) Debt
of any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Subsidiary of such specified Person and (ii)
Debt secured by a Lien encumbering any Property acquired by such specified
Person, which Debt was not incurred in anticipation of, and was outstanding
prior to, such merger, consolidation or acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms
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"controlling" and "controlled" have meanings correlative to the foregoing.
For purposes of Sections 1016 and 1018 and the definition of
"Telecommunications/IS Assets" only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of
rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Affiliate Transaction" has the meaning specified in Section 1018.
"Agent Member" has the meaning specified in Section 312.
"Asset Disposition" means any transfer, conveyance, sale, lease,
issuance or other disposition by the Company or any Restricted Subsidiary
in one or more related transactions (including a consolidation or merger or
other sale of any such Restricted Subsidiary with, into or to another
Person in a transaction in which such Restricted Subsidiary ceases to be a
Restricted Subsidiary of the Company, but excluding a disposition by a
Restricted Subsidiary to the Company or a Restricted Subsidiary or by the
Company to a Restricted Subsidiary) of (i) shares of Capital Stock or other
ownership interests of a Restricted Subsidiary (other than as permitted by
clause (v), (vi), (vii) or (ix) of Section 1017), (ii) substantially all of
the assets of the Company or any Restricted Subsidiary representing a
division or line of business or (iii) other Property of the Company or any
Restricted Subsidiary outside of the ordinary course of business (excluding
any transfer, conveyance, sale, lease or other disposition of equipment
that is obsolete or no longer used by or useful to the Company, provided
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that the Company has delivered to the Trustee an Officers' Certificate
stating that such criteria are satisfied); provided in each case that the
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aggregate consideration for such transfer, conveyance, sale, lease or other
disposition is equal to $5,000,000 or more in any 12-month period. The
following shall not be Asset Dispositions: (i) Permitted Telecommunications
Capital Asset Dispositions that comply with clause (i) of the first
paragraph of Section 1016, (ii) when used with respect to the Company, any
Asset
5
Disposition permitted pursuant to Article Eight which constitutes a
disposition of all or substantially all of the assets of the Company and
the Restricted Subsidiaries taken as a whole, (iii) Receivables sales
constituting Debt under Qualified Receivable Facilities permitted to be
Incurred pursuant to Section 1010 and (iv) any disposition that constitutes
a Permitted Investment or a Restricted Payment permitted by Section 1012.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during
the remaining term thereof (including any period for which such lease has
been extended) as determined in accordance with generally accepted
accounting principles, discounted from the last date of such remaining term
to the date of determination at a rate per annum equal to the discount rate
which would be applicable to a Capital Lease Obligation with like term in
accordance with generally accepted accounting principles. The net amount of
rent required to be paid under any such lease for any such period shall be
the aggregate amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of insurance,
taxes, assessments, utility, operating and labor costs and similar charges.
In the case of any lease which is terminable by the lessee upon the payment
of penalty, such net amount shall also include the lesser of the amount of
such penalty (in which case no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated) or the rent which would otherwise be required to be paid if
such lease is not so terminated. "Attributable Value" means, as to a
Capital Lease Obligation, the principal amount thereof.
"Board of Directors" 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 of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
6
"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 are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amount under a lease of (or other Debt arrangements
conveying the right to use) Property of such Person which is required to be
classified and accounted for as a capital lease or a liability on the face
of a balance sheet of such Person in accordance with generally accepted
accounting principles (a "Capital Lease"). The stated maturity of such
obligation shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. The principal
amount of such obligation shall be the capitalized amount thereof that
would appear on the face of a balance sheet of such Person in accordance
with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock
or other equity participations, including partnership interests, whether
general or limited, of such Person and any rights (other than debt
securities convertible or exchangeable into an equity interest), warrants
or options to acquire an equity interest in such Person.
"Cash Equivalents" means (i) Government Securities maturing, or
subject to tender at the option of the holder thereof, within two years
after the date of acquisition thereof, (ii) time deposits and certificates
of deposit of any commercial bank organized in the United States having
capital and surplus in excess of $500,000,000 or a commercial bank
organized under the law of any other country that is a member of the OECD
having total assets in excess of $500,000,000 (or its foreign currency
equivalent at the time) with a maturity date not more than one year from
the date of acquisition, (iii) repurchase obligations with a term of not
more than 30 days for underlying securities of the types described in
clause (i) above entered into with (x) any bank meeting the qualifications
specified in
7
clause (ii) above or (y) any primary government securities dealer reporting
to the Market Reports Division of the Federal Reserve Bank of New York,
(iv) direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentality thereof maturing, or subject to tender at the option of the
holder thereof, within 90 days after the date of acquisition thereof,
provided that, at the time of acquisition, the long-term debt of such
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state, political subdivision or public instrumentality has a rating of A
(or higher) from S&P or A-2 (or higher) from Xxxxx'x (or, if at any time
neither S&P nor Xxxxx'x shall be rating such obligations, then an
equivalent rating from such other nationally recognized rating service
acceptable to the Trustee), (v) commercial paper issued by the parent
corporation of any commercial bank organized in the United States having
capital and surplus in excess of $500,000,000 or a commercial bank
organized under the laws of any other country that is a member of the OECD
having total assets in excess of $500,000,000 (or its foreign currency
equivalent at the time), and commercial paper issued by others having one
of the two highest ratings obtainable from either S&P or Xxxxx'x (or, if at
any time neither S&P nor Xxxxx'x shall be rating such obligations, then
from such other nationally recognized rating service acceptable to the
Trustee) and in each case maturing within one year after the date of
acquisition, (vi) overnight bank deposits and bankers' acceptances at any
commercial bank organized in the United States having capital and surplus
in excess of $500,000,000 or a commercial bank organized under the laws of
any other country that is a member of the OECD having total assets in
excess of $500,000,000 (or its foreign currency equivalent at the time),
(vii) deposits available for withdrawal on demand with a commercial bank
organized in the United States having capital and surplus in excess of
$500,000,000 or a commercial bank organized under the laws of any other
country that is a member of the OECD having total assets in excess of
$500,000,000 (or its foreign currency equivalent at the time) and (viii)
investments in money market funds substantially all of whose assets
comprise securities of the types described in clauses (i) through (vii).
"Change of Control" has the meaning specified in Section 1009.
8
"Change of Control Triggering Event" has the meaning specified in
Section 1009.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"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 Order" or "Company Request" means a written request or order
signed in the name of the Company by the Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, the President or a
Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee.
"Consolidated Capital Ratio" means as of the date of determination the
ratio of (i) the aggregate amount of Debt of the Company and its Restricted
Subsidiaries on a consolidated basis as at the date of determination to
(ii) the sum of (a) $2,024,000,000, (b) the aggregate net proceeds to the
Company from the issuance or sale of any Capital Stock (including Preferred
Stock) of the Company other than Disqualified Stock subsequent to the
Measurement
9
Date, (c) the aggregate net proceeds from the issuance or sale of Debt of
the Company or any Restricted Subsidiary subsequent to the Measurement Date
convertible or exchangeable into Capital Stock of the Company other than
Disqualified Stock, in each case upon conversion or exchange thereof into
Capital Stock of the Company subsequent to the Measurement Date and (d) the
after-tax gain on the sale, subsequent to the Measurement Date, of Special
Assets to the extent such Special Assets have been sold for cash, Cash
Equivalents, Telecommunications/IS Assets or the assumption of Debt of the
Company or any Restricted Subsidiary (other than Debt that is subordinated
to the Securities or any applicable Restricted Subsidiary Guarantee) and
release of the Company and all Restricted Subsidiaries from all liability
on the Debt assumed; provided, however, that, for purposes of calculation
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of the Consolidated Capital Ratio, the net proceeds from the issuance or
sale of Capital Stock or Debt described in clause (b) or (c) above shall
not be included to the extent (x) such proceeds have been utilized to make
a Permitted Investment under clause (i) of the definition thereof or a
Restricted Payment or (y) such Capital Stock or Debt shall have been issued
or sold to the Company, a Subsidiary of the Company or an employee stock
ownership plan or trust established by the Company or any such Subsidiary
for the benefit of their employees.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period increased by the sum of, to the extent
reducing Consolidated Net Income for such period, (i) Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for such period,
plus (ii) Consolidated Income Tax Expense of the Company and its Restricted
Subsidiaries for such period, plus (iii) consolidated depreciation and
amortization expense and any other non-cash items (other than any such non-
cash item to the extent that it represents an accrual of or reserve for
cash expenditures in any future period); provided, however, that there
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shall be excluded therefrom the Consolidated Cash Flow Available for Fixed
Charges (if positive) of any Restricted Subsidiary (calculated separately
for such Restricted Subsidiary in the same manner as provided above for the
Company) that is subject to a restriction which prevents the payment of
dividends or the
10
making of distributions to the Company or another Restricted Subsidiary to
the extent of such restrictions.
"Consolidated Income Tax Expense" for any period means the aggregate
amounts of the provisions for income taxes of the Company and its
Restricted Subsidiaries for such period calculated on a consolidated basis
in accordance with generally accepted accounting principles.
"Consolidated Interest Expense" for any period means the interest
expense included in a consolidated income statement (excluding interest
income) of the Company and its Restricted Subsidiaries for such period in
accordance with generally accepted accounting principles, including without
limitation or duplication (or, to the extent not so included, with the
addition of), (i) the amortization of Debt discounts and issuance costs,
including commitment fees; (ii) any payments or fees with respect to
letters of credit, bankers' acceptances or similar facilities; (iii) net
costs with respect to interest rate swap or similar agreements or foreign
currency hedge, exchange or similar agreements (including fees); (iv)
Preferred Stock Dividends (other than dividends paid in shares of Preferred
Stock that is not Disqualified Stock) declared and paid or payable; (v)
accrued Disqualified Stock Dividends, whether or not declared or paid; (vi)
interest on Debt guaranteed by the Company and its Restricted Subsidiaries;
(vii) the portion of any Capital Lease Obligation or Sale and Leaseback
Transaction paid during such period that is allocable to interest expense;
(viii) interest Incurred in connection with investments in discontinued
operations; and (ix) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the Company
or a Restricted Subsidiary) in connection with Debt Incurred by such plan
or trust.
"Consolidated Net Income" for any period means the net income (or
loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a)
--------
for purposes of Section 1012 only, the net income (or loss) of any Person
acquired by the Company or a Restricted Subsidiary in a pooling-of-
interests transaction for any period
11
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Restricted Subsidiary except to the extent of the
amount of dividends or other distributions actually paid to the Company or
a Restricted Subsidiary by such Person during such period (except, for
purposes of Section 1012 only, to the extent such dividends or
distributions have been subtracted from the calculation of the amount of
Investments to support the actual making of Investments), (c) gains or
losses realized upon the sale or other disposition of any Property of the
Company or its Restricted Subsidiaries that is not sold or disposed of in
the ordinary course of business (it being understood that Permitted
Telecommunications Capital Asset Dispositions shall be considered to be in
the ordinary course of business), (d) gains or losses realized upon the
sale or other disposition of any Special Assets, (e) all extraordinary
gains and extraordinary losses, determined in accordance with generally
accepted accounting principles, (f) the cumulative effect of changes in
accounting principles, (g) non-cash gains or losses resulting from
fluctuations in currency exchange rates, (h) any non-cash expense related
to the issuance to employees or directors of the Company or any Restricted
Subsidiary of (1) options to purchase Capital Stock of the Company or such
Restricted Subsidiary or (2) other compensatory rights; provided, in either
--------
case, that such options or rights, by their terms can be redeemed at the
option of the holder of such option or right only for Capital Stock, and
(i) with respect to a Restricted Subsidiary that is not a Wholly Owned
Subsidiary any aggregate net income (or loss) in excess of the Company's or
any Restricted Subsidiary's pro rata share of the net income (or loss) of
such Restricted Subsidiary that is not a Wholly Owned Subsidiary; provided
--------
further that there shall further be excluded therefrom the net income (but
-------
not net loss) of any Restricted Subsidiary that is subject to a restriction
which prevents the payment of dividends or the making of distributions to
the Company or another Restricted Subsidiary to the extent of such
restriction.
"Consolidated Net Worth" of any Person means the stockholders' equity
of such Person, determined on a consolidated basis in accordance with
generally accepted accounting principles, less amounts attributable to
Disqualified Stock of such Person.
12
"Consolidated Tangible Assets" of any Person means the total amount of
assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Subsidiaries after
deducting therefrom all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which in
each case under generally accepted accounting principles would be included
on such consolidated balance sheet.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000.
"Credit Agreement" means the Credit Agreement dated as of September 30,
1999, among the Company, certain subsidiaries of the Company, the lenders
parties thereto and The Chase Manhattan Bank, as Administrative Agent and
Collateral Agent.
"Credit Facilities" means one or more credit agreements, loan
agreements or similar facilities, secured or unsecured, providing for
revolving credit loans, term loans and/or letters of credit, including the
Credit Agreement and any Qualified Receivable Facility, entered into from
time to time by the Company and its Restricted Subsidiaries, and including
any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, as the same may be amended,
supplemented, modified, restated or replaced from time to time.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or
not contingent, (i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures, notes
or other similar instruments, including obligations incurred in connection
with the acquisition of Property, (iii) every reimbursement obligation of
such Person with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of such Person, (iv) every
obligation of such Person issued or
13
assumed as the deferred purchase price of Property or services (including
securities repurchase agreements but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business), (v) every
Capital Lease Obligation of such Person and all Attributable Value in
respect of Sale and Leaseback Transactions entered into by such Person,
(vi) all obligations to redeem or repurchase Disqualified Stock issued by
such Person, (vii) the liquidation preference of any Preferred Stock (other
than Disqualified Stock, which is covered by the preceding clause (vi))
issued by any Restricted Subsidiary of such Person, (viii) every obligation
under Interest Rate or Currency Protection Agreements of such Person and
(ix) every obligation of the type referred to in clauses (i) through (viii)
of another Person and all dividends of another Person the payment of which,
in either case, such Person has Guaranteed. The "amount" or "principal
amount" of Debt at any time of determination as used herein represented by
(a) any Debt issued at a price that is less than the principal amount at
maturity thereof, shall be, except as otherwise set forth herein, the
Accreted Value of such Debt at such time or (b) in the case of any
Receivables sale constituting Debt, the amount of the unrecovered purchase
price (that is, the amount paid for Receivables that has not been actually
recovered from the collection of such Receivables) paid by the purchaser
(other than the Company or a Wholly Owned Restricted Subsidiary of the
Company) thereof. The amount of Debt represented by an obligation under an
Interest Rate or Currency Protection Agreement shall be equal to (x) zero
if such obligation has been Incurred pursuant to clause (x) of paragraph
(b) of Section 1010 or (y) the notional amount of such obligation if not
Incurred pursuant to such clause.
"Default" means any event, act or condition the occurrence of which is,
or after notice or the passage of time or both would be, an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means The Depository Trust Company, its nominees and
successors.
14
"Designation" and "Designation Amount" have the respective meanings
specified in Section 1019.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the final Stated Maturity of
the Securities; provided, however, that any Preferred Stock which would not
-------- -------
constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require the Company to repurchase or redeem such
Preferred Stock upon the occurrence of a change of control occurring prior
to the final Stated Maturity of the Securities shall not constitute
Disqualified Stock if the change of control provisions applicable to such
Preferred Stock are no more favorable to the holders of such Preferred
Stock than the provisions applicable to the Securities contained in Section
1009 and such Preferred Stock specifically provides that the Company will
not repurchase or redeem any such stock pursuant to such provisions prior
to the Company's repurchase of such Securities as are required to be
repurchased pursuant to Section 1009.
"Disqualified Stock Dividends" means all dividends with respect to
Disqualified Stock of the Company held by Persons other than a Wholly Owned
Restricted Subsidiary. The amount of any such dividend shall be equal to
the quotient of such dividend divided by the difference between one and the
maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) applicable to the Company for the period during which such
dividends were paid.
"Dollar Notes" means, collectively, the Company's 11% Senior Notes due
2008 in an aggregate principal amount not to exceed $800,000,000 and the
Company's 12 7/8% Senior Discount Notes due 2010 in an aggregate principal
amount at maturity not to exceed $675,000,000.
"Eligible Receivables" means, at any time, Receivables of the Company
and its Restricted Subsidiaries, as evidenced on the most recent quarterly
consolidated balance sheet of
15
the Company as at a date at least 45 days prior to such time, arising in
the ordinary course of business of the Company or any Restricted
Subsidiary.
"Euro Notes" means, collectively, the Company's 10 3/4% Senior Euro
Notes due 2008 in an aggregate principal amount not to exceed
(EURO)500,000,000 and the Company's 11 1/4% Senior Euro Notes due 2010 in
an aggregate principal amount not to exceed (Euro)300,000,000.
"European Government Obligation" means direct non-callable obligations
of, or non-callable obligations permitted by, any state members of the
European Union, the payment or guarantee of which is secured by the pledge
of the full faith and credit of the respective nation, provided that such
--------
nation has a credit rating at least equal to that of the highest rated
member nation of the member nations of the European Union.
"European Union" means the state members to the third stage of economic
and monetary union pursuant to the Treaty of Rome establishing the European
Community, as amended by the Treaty on European Union, signed at Maastricht
on February 7, 1992, and the Treaty signed at Amsterdam on October 2, 1997.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder (or
respective successors thereto).
"Exchange Securities" has the meaning stated in the first recital of
this Indenture.
"Excess Proceeds" has the meaning specified in Section 1016.
"Existing Notes" means the 9 1/8% Senior Notes, the 10 1/2% Senior
Discount Notes and the 6% Convertible Notes.
"Expiration Date" has the meaning specified in "Offer to Purchase"
below.
16
"Fair Market Value" means, with respect to any Property, the price that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under
pressure or compulsion to complete the transaction. Unless otherwise
specified herein, Fair Market Value shall be determined by the Board of
Directors acting in good faith and shall be evidenced by a Board Resolution
delivered to the Trustee.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Global Security" means a Rule 144A Global Security, an Institutional
Accredited Investor Global Security or a Regulation S Global Security, as
the case may be.
"Government Securities" means direct obligations of, or obligations
fully and unconditionally guaranteed or insured by, the United States of
America or any agency or instrumentality thereof for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged and which are not callable or redeemable at the issuer's option
(unless, for purposes of the definition of "Cash Equivalents" only, the
obligations are redeemable or callable at a price not less than the
purchase price paid by the Company or the applicable Restricted Subsidiary,
together with all accrued and unpaid interest (if any) on such Government
Securities).
"Guarantee" by any Person means any obligation, direct or indirect,
contingent or otherwise, of such Person guaranteeing, or having the
economic effect of guaranteeing, any Debt of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and any
obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt, including any such
obligations arising by virtue of partnership arrangements or by agreements
to keep-well, (ii) to purchase Property or services or to take-or-pay for
the purpose of assuring the holder of such Debt of the payment of such
Debt, (iii) to
17
maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt or (iv) entered into for the purpose of assuring
in any other manner the obligee against loss in respect thereof, in whole
or in part (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have
meanings correlative to the foregoing); provided, however, that the
-------- -------
Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business.
"Guarantor" means a Restricted Subsidiary of the Company that has
executed a Restricted Subsidiary Guarantee, until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or
other obligation including the recording, as required pursuant to generally
accepted accounting principles or otherwise, of any such Debt or other
obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to
the foregoing); provided, however, that a change in generally accepted
-------- -------
accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt and that neither the accrual of interest nor the accretion of original
issue discount shall be deemed an Incurrence of Debt. Debt otherwise
incurred by a Person before it becomes a Subsidiary of the Company shall be
deemed to have been Incurred at the time at which it becomes a Subsidiary.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof.
18
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx, Xxxxx &
Co., Xxxxxx Xxxxxxx & Co. Incorporated, Chase Securities, Inc., X.X. Xxxxxx
Securities, Inc., Credit Suisse First Boston Corporation, BNY Capital
Markets, Inc. and First Union Securities, Inc.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Institutional Accredited Investor Global Security" has the meaning
specified in Section 303.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including caps, floors, collars and similar
agreements) relating to, or the value of which is dependent upon, interest
rates or currency exchange rates or indices.
"Invested Capital" means the sum of (a) $500,000,000, (b) the aggregate
net proceeds received by the Company from the issuance or sale of any
Capital Stock, including Preferred Stock, of the Company but excluding
Disqualified Stock, subsequent to the Measurement Date, and (c) the
aggregate net proceeds from the issuance or sale of Debt of the Company or
any Restricted Subsidiary subsequent to the Measurement Date convertible or
exchangeable into Capital Stock of the Company other than Disqualified
Stock, in each case upon conversion or exchange thereof into Capital Stock
of the Company subsequent to the Measurement Date; provided, however, that
-------- -------
the net proceeds from the issuance or sale of Capital Stock or Debt
described in clause (b) or (c) shall be excluded from any computation of
Invested Capital to the extent (i) utilized to make a Restricted Payment or
(ii) such Capital Stock or Debt shall have been issued or sold to the
Company, a Subsidiary of the Company or an employee stock ownership plan or
trust established by the
19
Company or any such Subsidiary for the benefit of their employees.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers
of cash or other Property to others or payments for Property or services
for the account or use of others, or otherwise) to, purchase, redemption,
retirement or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, or Incurrence of, or
payment on, a Guarantee of any obligation of, any other Person; provided
--------
that Investments shall exclude commercially reasonable extensions of trade
credit. The amount, as of any date of determination, of any Investment
shall be the original cost of such Investment, plus the cost of all
additions, as of such date, thereto and minus the amount, as of such date,
of any portion of such Investment repaid to such Person in cash as a
repayment of principal or a return of capital, as the case may be (except
to the extent such repaid amount has been included in Consolidated Net
Income to support the actual making of Restricted Payments), but without
any other adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. In determining
the amount of any Investment involving a transfer of any Property other
than cash, such Property shall be valued at its Fair Market Value at the
time of such transfer.
"Issue Date" means the date on which the Initial Securities are
initially issued.
"Issue Date Purchase Money Debt" means Purchase Money Debt outstanding
on the Issue Date; provided, that the amount of such Purchase Money Debt
when Incurred did not exceed 100% of the cost of the construction,
installation, acquisition, lease, development or improvement of the
applicable Telecommunications/IS Assets.
"Issue Date Rating" means B3 in the case of Moody's and B in the case
of S&P, which are the respective ratings assigned to the Securities by the
Rating Agencies on the Issue Date.
20
"Joint Venture" means a Person in which the Company or a Restricted
Subsidiary holds not more than 50% of the shares of Voting Stock.
"Lien" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness), encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on
or with respect to such Property (including any Capital Lease Obligation,
conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing and any Sale and Leaseback
Transaction). For purposes of this definition the sale, lease, conveyance
or other transfer by the Company or any of its Subsidiaries of, including
the grant of indefeasible rights of use or equivalent arrangements with
respect to, dark or lit communications fiber capacity or communications
conduit shall not constitute a Lien.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or
otherwise.
"Measurement Date" means April 28, 1998, the date the 9 1/8% Senior
Notes were originally issued.
"Moody's" means Xxxxx'x Investors Service, Inc. or, if Xxxxx'x
Investors Service, Inc. shall cease rating debt securities having a
maturity at original issuance of at least one year and such ratings
business shall have been transferred to a successor Person, such successor
Person; provided, however, that if Xxxxx'x Investors Service, Inc. ceases
-------- -------
rating debt securities having a maturity at original issuance of at least
one year and its ratings business with respect thereto shall not have been
transferred to any successor Person, then "Moody's" shall mean any other
national recognized rating agency (other than S&P) that rates debt
securities having a maturity at original issuance of at least one year and
that shall have been designated by the Trustee by a written notice given to
the Company.
21
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or cash equivalents received (including amounts received by way of
sale or discounting of any note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Debt or other obligations relating to such
Property) therefrom by such Person, net of (i) all legal, title and
recording taxes, expenses and commissions and other fees and expenses
(including appraisals, brokerage commissions and investment banking fees)
Incurred and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Subsidiaries on
any Debt which is secured by such Property in accordance with the terms of
any Lien upon or with respect to such Property or which must by the terms
of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or by applicable law, be repaid out of the proceeds from such
Asset Disposition, (iii) all distributions and other payments required to
be made to minority interest holders in Subsidiaries or Joint Ventures of
such Person as a result of such Asset Disposition and (iv) appropriate
amounts to be provided by such Person or any Subsidiary thereof, as the
case may be, as a reserve in accordance with generally accepted accounting
principles against any liabilities associated with such Property and
retained by such Person or any Subsidiary thereof, as the case may be,
after such Asset Disposition, including liabilities under any
indemnification obligations and severance and other employee termination
costs associated with such Asset Disposition, in each case as determined by
the board of directors of such Person, in its reasonable good faith
judgment evidenced by a Board Resolution filed with the Trustee; provided,
--------
however, that any reduction in such reserve within twelve months following
-------
the consummation of such Asset Disposition will be, for all purposes of
this Indenture and the Securities, treated as a new Asset Disposition at
the time of such reduction with Net Available Proceeds equal to the amount
of such reduction; provided further, however, that, in the event that any
---------------- -------
consideration for a transaction (which would otherwise constitute Net
Available Proceeds) is required to be held in escrow pending determination
of whether a purchase price adjustment will be made, at such time as such
portion of the
22
consideration is released to such Person or its Restricted Subsidiary from
escrow, such portion shall be treated for all purposes of this Indenture
and the Securities as a new Asset Disposition at the time of such release
from escrow with Net Available Proceeds equal to the amount of such portion
of consideration released from escrow.
"New Convertible Notes" means the Company's 6% Convertible Subordinated
Notes due 2010 in an aggregate principal amount not to exceed $862,500,000.
"9 1/8% Senior Notes" means the Company's 9 1/8% Senior Notes due 2008
in an aggregate principal amount not to exceed $2,000,000,000, originally
issued on April 28, 1998.
"Non-Global Purchasers" has the meaning specified in Section 303.
"Offer" has the meaning specified in "Offer to Purchase" below.
23
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first-class mail, postage prepaid, to each Holder of Securities at
its address appearing in the Security Register on the date of the Offer offering
to purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Securities within five Business Days after
the Expiration Date. The Company shall notify the Trustee at least 15 Business
Days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company's obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make an
informed decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by applicable law to be included therein).
The Offer shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
24
a. the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
b. the Expiration Date and the Purchase Date;
c. the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100% of the Outstanding Securities, the manner by
which such has been determined pursuant to the Section hereof requiring the
Offer to Purchase) (the "Purchase Amount");
d. the purchase price to be paid by the Company for $1,000 aggregate
principal amount of Securities accepted for payment (as specified pursuant
to this Indenture) (the "Purchase Price");
e. that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
f. the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
g. that any Securities not tendered or tendered but not purchased by
the Company will continue to accrue interest;
h. that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon, if any, shall cease to accrue on and
after the Purchase Date;
i. that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in
25
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing);
j. that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or the Paying Agent) receives, not
later than the close of business on the Expiration Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder tendered, the certificate number of the
Security the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
k. that (i) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (ii) if Securities in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities having an
aggregate principal amount equal to the Purchase Amount on a pro rata basis
--- ----
(with such adjustments as may be deemed appropriate so that only Securities
in denominations of $1,000 principal amount or integral multiples thereof
shall be purchased); and
l. that in the case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, the President
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary of the
26
Company and delivered to the Trustee, which shall comply with this Indenture.
"Opinion of Counsel" means an opinion of counsel acceptable to the Trustee
(who may be counsel to the Company, including an employee of the Company).
"OECD" shall mean the Organization for Economic Cooperation and
Development.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) on and after any maturity or redemption date, Securities, 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) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that (a) the Trustee or the Paying
--------
Agent, as applicable, is not prohibited from paying such money to the
Holders and (b) if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture;
(iii) Securities, except to the extent provided in Sections 1202 and
1203, with the Company has effected defeasance or covenant defeasance as
provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in
27
whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities 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 making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which any
Responsible Officer of the Trustee knows to be so owned or as to which the
Trustee has received written notice shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any)
or interest on any Securities on behalf of the Company.
"Permitted Holders" means the members of the Company's Board of Directors
on the Measurement Date and their respective estates, spouses, ancestors, and
lineal descendants, the legal representatives of any of the foregoing and the
trustees of any bona fide trusts of which the foregoing are the sole
beneficiaries or the grantors, or any Person of which the foregoing
"beneficially owns" (as defined in Rule 13d-3 under the Exchange Act) at least
66 2/3% of the total voting power of the Voting Stock of such Person.
"Permitted Interest Rate or Currency Protection Agreement" of any Person
means any Interest Rate or Currency Protection Agreement entered into with one
or more financial institutions in the ordinary course of business that is
28
designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and not for purposes of
speculation and which, in the case of an interest rate agreement, shall have a
notional amount no greater than the principal amount at maturity due with
respect to the Debt being hedged thereby.
"Permitted Investments" means (a) Cash Equivalents; (b) investments in
prepaid expenses; (c) negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits; (d)
loans, advances or extensions of credit to employees and directors made in the
ordinary course of business and consistent with past practice; (e) obligations
under Permitted Interest Rate or Currency Protection Agreements; (f) bonds,
notes, debentures and other securities received as a result of Asset
Dispositions pursuant to and in compliance with Section 1016; (g) Investments in
any Person as a result of which such Person becomes a Restricted Subsidiary; (h)
Investments made prior to the Measurement Date; (i) Investments made after the
Measurement Date in Persons engaged in the Telecommunications/IS Business in an
aggregate amount not to exceed Invested Capital; (j) solely in connection with
the defeasance of euro-denominated Debt permitted under this Indenture, European
Government Obligations; and (k) additional Investments in an aggregate amount
not to exceed $200,000,000.
"Permitted Liens" means (a) Liens for taxes, assessments, governmental
charges, levies or claims which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with generally
accepted accounting principles shall have been made therefor; (b) other Liens
incidental to the conduct of the Company's and its Restricted Subsidiaries'
businesses or the ownership of its Property not securing any Debt, and which do
not in the aggregate materially detract from the value of the Company's and its
Restricted Subsidiaries' Property when taken as a whole, or materially impair
the use thereof in the operation of its business; (c) Liens, pledges and
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of statutory obligations;
(d) Liens,
29
pledges or deposits made to secure the performance of tenders, bids, leases,
public or statutory obligations, sureties, stays, appeals, indemnities,
performance or other similar bonds and other obligations of like nature incurred
in the ordinary course of business (exclusive of obligations for the payment of
borrowed money, the obtaining of advances or credit or the payment of the
deferred purchase price of Property and which do not in the aggregate materially
impair the use of Property in the operation of the business of the Company and
the Restricted Subsidiaries taken as a whole); (e) zoning restrictions,
servitudes, easements, rights-of-way, restrictions and other similar charges or
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not materially detract from the value of the Property subject
thereto or materially interfere with the ordinary conduct of the business of the
Company or its Restricted Subsidiaries; and (f) any interest or title of a
lessor in the Property subject to any lease other than a Capital Lease.
"Permitted Telecommunications Capital Asset Disposition" means the
transfer, conveyance, sale, lease or other disposition of optical fiber and/or
conduit and any related equipment used in a Segment (as defined) of the
Company's communications network that (i) constitute capital assets in
accordance with generally accepted accounting principles and (ii) after giving
effect to such disposition, would result in the Company retaining at least
either (A) 24 optical fibers per route mile on such Segment as deployed at the
time of such disposition or (B) 12 optical fibers and one empty conduit per
route mile on such Segment as deployed as such time. "Segment" means (x) with
respect to the Company's intercity network, the through-portion of such network
between two local networks (i.e., Omaha to Denver) and (y) with respect to a
local network of the Company (i.e., Dallas), the entire through-portion of such
network, excluding the spurs which branch off the through-portion.
"Person" means any individual, corporation, company, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Physical Security" has the meaning specified in Section 303.
30
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding-up of such Person, to shares of Capital
Stock of any other class of such Person.
"Preferred Stock Dividends" means all dividends with respect to
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory federal income rate (expressed as a
decimal number between 1 and 0) applicable to the issuer of such Preferred Stock
for the period during which such dividends were paid.
"Private Exchange Offer" means the offer by the Company, pursuant to
Section 2(f) of the Registration Agreement, to issue and deliver to certain
purchasers, in exchange for the Initial Securities held by such purchasers as
part of their initial distribution, a like aggregate principal amount of Private
Exchange Securities.
"Private Exchange Securities" means the Exchange Securities to be
issued pursuant to this Indenture in connection with a Private Exchange Offer
pursuant to the Registration Agreement.
"Private Placement Legend" means the third paragraph of the legend set
forth in the Securities in the form set forth in Exhibit A.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset,
31
whether real, personal or mixed, or tangible or intangible, including Capital
Stock in, and other securities of, any other Person. For purposes of any
calculation required pursuant to this Indenture, the value of any Property shall
be its Fair Market Value.
"Proportionate Interest" in any issuance of Capital Stock of a Restricted
Subsidiary means a ratio (i) the numerator of which is the aggregate amount of
all Capital Stock of such Restricted Subsidiary beneficially owned by the
Company and the Restricted Subsidiaries and (ii) the denominator of which is the
aggregate amount of Capital Stock of such Restricted Subsidiary beneficially
owned by all Persons (excluding, in the case of this clause (ii), any Investment
made in connection with such issuance).
"Purchase Amount" has the meaning specified in "Offer to Purchase" above.
"Purchase Date" has the meaning specified in "Offer to Purchase" above.
"Purchase Money Debt" means Debt (including Acquired Debt and Capital
Lease Obligations, mortgage financings and purchase money obligations) incurred
for the purpose of financing all or any part of the cost of construction,
installation, acquisition, lease, development or improvement by the Company or
any Restricted Subsidiary of any Telecommunications/IS Assets of the Company or
any Restricted Subsidiary and including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as the same may be amended, supplemented, modified or restated from
time to time.
"Purchase Price" has the meaning specified in "Offer to Purchase"
above.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A.
"Qualified Receivable Facility" means Debt of the Company or any
Subsidiary Incurred from time to time pursuant to either (x) credit facilities
secured by Receivables or (y) Receivables purchase facilities, and
32
including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, as the same may be amended,
supplemented, modified or restated from time to time.
"Rating Agencies" means Moody's and S&P.
"Rating Date" means the earlier of the date of public notice of the
occurrence of a Change of Control or of the intention of the Company to effect a
Change of Control.
"Rating Decline" shall be deemed to have occurred if, no later than 90
days after the Rating Date (which period shall be extended so long as the rating
of the Securities is under publicly announced consideration for possible
downgrade by any of the Rating Agencies), either of the Rating Agencies assigns
or reaffirms a rating to the Securities that is lower than the applicable Issue
Date Rating (or the equivalent thereof). If, prior to the Rating Date, either of
the ratings assigned to the Securities by the Rating Agencies is lower than the
applicable Issue Date Rating, then a Rating Decline will be deemed to have
occurred if such rating is not changed by the 90th day following the Rating
Date. A downgrade within rating categories, as well as between rating
categories, will be considered a Rating Decline.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money and
proceeds and products thereof in each case generated in the ordinary course of
business.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"refinancing" has the meaning specified in Section 1010(b)(viii).
"Registered Exchange Offer" means the offer by the Company, pursuant to
the Registration Agreement, to certain
33
Holders of Initial Securities, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of Exchange
Securities registered under the Securities Act.
"Registration Agreement" means the U.S. Registration Agreement dated
February 24, 2000, between the Company and the Initial Purchasers relating to
the Initial Securities.
"Registration Default" has the meaning specified in Exhibit A.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section 303.
"Required Filing Dates" has the meaning specified in Section 1007.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Trustee's Corporate Trust Office, including any vice
president, any assistant secretary, any 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 means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Payment" has the meaning specified in Section 1012.
"Restricted Subsidiary" means (a) a Subsidiary of the Company or of a
Restricted Subsidiary that has not been designated or classified as an
Unrestricted Subsidiary pursuant to and in compliance with Section 1019 and (b)
an
34
Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary
pursuant to such Section.
"Restricted Subsidiary Guarantee" means a supplemental indenture to this
Indenture in substantially the form set forth in Exhibit B hereto, providing for
an unconditional Guarantee of payment in full of the principal of, premium, if
any, and interest on the Securities. Any such Restricted Subsidiary Guarantee
shall not be subordinate to any Debt of the Restricted Subsidiary providing the
Restricted Subsidiary Guarantee.
"Revocation" has the meaning specified in Section 1019.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Security" has the meaning specified in Section 303.
"S&P" means Standard & Poor's Ratings Service or, if Standard & Poor's
Ratings Service shall cease rating debt securities having a maturity at original
issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
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that if Standard & Poor's Rating Service ceases rating debt securities having a
maturity at original issuance of at least one year and its ratings business with
respect thereto shall not have been transferred to any successor Person, then
"S&P" shall mean any other national recognized rating agency (other than
Moody's) that rates debt securities having a maturity at original issuance of at
least one year and that shall have been designated by the Trustee by a written
notice given to the Company.
"Sale and Leaseback Transaction" of any Person means any direct or indirect
arrangement pursuant to which any Property is sold or transferred by such Person
or a Restricted Subsidiary of such person and is thereafter leased back from the
purchaser or transferee thereof by such Person or one of its Restricted
Subsidiaries. The stated maturity of such arrangement shall be the date of the
last payment of rent or any other amount due under such arrangement prior to the
first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
35
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor act), and the rules and regulations thereunder (or respective
successors thereto).
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Statement" means a registration statement issued by
the Company in connection with the offer and sale of Initial Securities pursuant
to the Registration Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"6% Convertible Notes" means the Company's 6% Convertible Subordinated
Notes due 2009 in an aggregate principal amount not to exceed $823,000,000,
originally issued on September 14, 1999.
"Special Assets" means (a) the Capital Stock or assets of Cable
Michigan, Inc., RCN Corporation, Commonwealth Telephone Enterprises, Inc., KCP,
Inc. and California Private Transportation Company, L.P. (and any intermediate
holding companies or other entities formed solely for the purpose of owning such
Capital Stock or assets) owned, directly or indirectly, by the Company or any
Restricted Subsidiary on the Measurement Date, and (b) any Property, other than
cash, Cash Equivalents and Telecommunications/IS Assets, received as
consideration for the disposition after the Measurement Date of Special Assets
(as contemplated by the first proviso in Section 1016).
"Special Interest" has the meaning specified in Exhibit A.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
36
"Stated Maturity" when used with respect to a Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
Security at the option of the Holder thereof upon the happening of any
contingency beyond the control of the Company unless such contingency has
occurred).
"Subordinated Debt" means Debt of the Company (a) that is not secured
by any Lien on or with respect to any Property now owned or acquired after the
Measurement Date and (b) as to which the payment of principal of (and premium,
if any) and interest and other payment obligations in respect of such Debt shall
be subordinate to the prior payment in full in cash of the Securities to at
least the following extent: (i) no payments of principal of (or premium, if any)
or interest on or otherwise due (including by acceleration or for additional
amounts) in respect of, or repurchases, redemptions or other retirements of,
such Debt (collectively, "payments of such Debt") may be permitted for so long
as any default (after giving effect to any applicable grace periods) in the
payment of principal (or premium, if any) or interest on the Securities exists,
including as a result of acceleration; (ii) in the event that any other Default
exists with respect to the Securities, upon notice by Holders of 25% or more in
aggregate principal amount of the Securities to the Trustee, the Trustee shall
have the right to give notice to the Company and the holders of such Debt (or
trustees or agents therefor) of a payment blockage, and thereafter no payments
of such Debt may be made for a period of 179 days from the date of such notice,
provided that not more than one such payment blockage notice may be given in any
--------
consecutive 360-day period, irrespective of the number of defaults with respect
to the Securities during such period; (iii) if payment of such Debt is
accelerated when any Securities are Outstanding, no payments of such Debt may be
made until three Business Days after the Trustee receives notice of such
acceleration and, thereafter, such payments may only be made to the extent the
terms of such Debt permit payment at that time; and (iv) such Debt may not (x)
provide for
37
payments of principal of such Debt at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances but excluding any retirement required by virtue of acceleration of
such Debt upon an event of default thereunder), in each case prior to the final
Stated Maturity of the Securities or (y) permit redemption or other retirement
(including pursuant to an offer to purchase made by the Company) of such other
Debt at the option of the holder thereof prior to the final Stated Maturity of
the Securities, other than, in the case of clause (x) or (y), any such payment,
redemption or other retirement (including pursuant to an offer to purchase made
by the Company) which is conditioned upon (A) a change of control of the Company
pursuant to provisions substantially similar to those described in Section 1009
(and which shall provide that such Debt will not be repurchased pursuant to such
provisions prior to the Company's repurchase of the Securities required to be
repurchased by the Company pursuant to the provisions described in Section 1009)
or (B) a sale or other disposition of assets pursuant to provisions
substantially similar to those described in Section 1016 (and which shall
provide that such Debt will not be repurchased pursuant to such provisions prior
to the Company's repurchase of the Securities required to be repurchased by the
Company pursuant to the provision described in Section 1016).
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Telecommunications/IS Assets" means (a) any Property (other than cash,
cash equivalents and securities) to be owned by the Company or any Restricted
Subsidiary and used in the Telecommunications/IS Business; (b) for purposes of
38
Sections 1010 and 1014 only, Capital Stock of any Person; or (c) for all other
purposes of this Indenture, Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary from any Person other than an Affiliate of the
Company; provided, however, that, in the case of clause (b) or (c), such Person
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is primarily engaged in the Telecommunications/IS Business.
"Telecommunications/IS Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased transmission facilities, (ii)
constructing, creating, developing or marketing communications networks, related
network transmission equipment, software and other devices for use in a
communications business, (iii) computer outsourcing, data center management,
computer systems integration, reengineering of computer software for any purpose
(including, without limitation, for the purposes of porting computer software
from one operating environment or computer platform to another or to address
issues commonly referred to as "Year 2000 issues") or (iv) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in (i), (ii) or (iii) above; provided that the
--------
determination of what constitutes a Telecommunications/IS Business shall be made
in good faith by the Board of Directors.
"10 1/2% Senior Discount Notes" means the Company's 10 1/2% Senior
Discount Notes due 2008 in an aggregate principal amount at maturity not to
exceed $833,815,000, originally issued on November 24, 1998.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except as provided
in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
39
"Unrestricted Subsidiary" means (a) 91 Holding Corp.; (b) any
Subsidiary of an Unrestricted Subsidiary; and (c) any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 1019 and not
thereafter redesignated as a Restricted Subsidiary as permitted pursuant
thereto.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only for so long as
no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Voting Stock or other ownership interests (other
than directors' qualifying shares) of which shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel 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 is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
40
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion
41
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 104. 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 agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
42
proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
--------
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. However, any such Holder or future
43
Holder may revoke the request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder as to such Holder's Security or
portion of the Security if the Trustee receives the notice of revocation before
the date such Act becomes effective.
SECTION 105. Notices, etc., to Trustee and 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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company or such Guarantor
addressed to it (in the case of a Guarantor, in care of the Company)
at the address of the Company's principal office specified in the
first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
44
SECTION 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be given (unless otherwise herein
expressly provided) 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 Security 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. Notices shall be
effective only upon receipt. 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 or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
45
SECTION 109. Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Security Registrar and their successors hereunder and the Holders any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 112. Conflict with Trust Indenture Act.
----------------------------------
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with 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.
46
SECTION 113. Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal (or 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 or Redemption Date or at the
Stated Maturity or Maturity; provided that no interest shall accrue for the
--------
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.
SECTION 114. No Personal Liability of Directors, Officers, Employees
-------------------------------------------------------
and Stockholders.
-----------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or any Guarantor under the Securities or this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company or a Guarantor. By accepting a
Security, each Holder waives and releases all such liability (but only such
liability). The waiver and release are part of the consideration for issuance of
the Securities.
SECTION 115. 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 116. Exhibits.
---------
All exhibits attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
47
SECTION 117. Counterparts.
-------------
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 118. Duplicate Originals.
--------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
----------------
The Securities and the Trustee's certificate of authentication with
respect thereto shall be in substantially the form set forth in Exhibit A
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 the rules of any
securities exchange or system on which the Securities may be listed or eligible
for trading or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange or system on which the Securities may be
listed or eligible for trading, all as determined by the officers of the Company
executing such Securities, as evidenced by their execution of such Securities.
48
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
----------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $250,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906, 1009, 1016 or 1108.
The Securities shall be known and designated as the "11 1/4% Senior
Notes Due 2010" of the Company. Their Stated Maturity shall be March 15, 2010,
and they shall bear interest at the rate of 11 1/4% per annum from February 29,
2000, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable on September 15, 2000 and semiannually
thereafter on March 15 and September 15 in each year and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
Principal of, premium, if any, and interest on the Securities will be
payable, and the Securities may be exchanged or transferred, at the office or
agency of the Company in The City of New York, which, unless otherwise provided
by the Company, will be the offices of the Trustee. At the option of the
Company, interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register.
The interest rate on the Securities is subject to increase by the
addition of Special Interest and otherwise, all as set forth or referred to in
the text of the Securities appearing in Exhibit A hereto.
The Securities shall be redeemable as provided in Article Eleven.
At the election of the Company, the entire Debt on the Securities or
certain of the Company's obligations and covenants and certain Events of Default
thereunder may be defeased as provided in Article Twelve.
49
SECTION 302. Denominations.
--------------
The Securities will be issued without coupons and in fully registered
form only, in minimum denominations of $1,000 principal amount and integral
multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal reproduced
thereon and attested by its Secretary or an Assistant Secretary. The signature
of any of these officers on the Securities may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such
50
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
The Trustee shall authenticate and deliver (1) initially one or more
Global Securities for original issue in an aggregate principal amount not to
exceed $250,000,000 and (2) Exchange Securities for issue only in a Registered
Exchange Offer or a Private Exchange Offer pursuant to the Registration
Agreement, for a like principal amount of Initial Securities, upon receipt of a
Company Order, which shall specify the amount of Securities to be authenticated,
whether the Securities are to be Initial Securities or Exchange Securities, the
date on which such Securities are to be authenticated and direct the Trustee to
authenticate such Securities.
Except as described below, the Securities will be deposited with, or
on behalf of, the Depository, and registered in the name of Cede & Co. as the
Depository's nominee in the form of a global note certificate substantially in
the form of Exhibit A (the "Rule 144A Global Security"), for credit to the
respective accounts of the beneficial owners of the Securities represented
thereby.
Securities transferred to persons outside the United States in
accordance with Regulation S under the Securities Act shall be deposited with,
or on behalf of, the Depository, and registered in the name of Cede & Co. as the
Depository's nominee in the form of one or more global note certificates
substantially in the form of Exhibit A (each a "Regulation S Global Security"),
for credit to the respective accounts of the beneficial owners of the Securities
represented thereby, provided that upon such deposit all such Securities shall
--------
be credited to or through accounts maintained at the Depository by or on behalf
of the Euroclear System or Clearstream, societe anonyme.
Securities transferred to Institutional Accredited Investors will be
deposited with, or on behalf of, the Depository, and registered in the name of
Cede & Co. as the Depository's nominee in the form of one or more global note
certificates substantially in the form of Exhibit A (each a "Institutional
Accredited Investor Global Security"), for credit to the respective accounts of
the beneficial owners of the Securities represented thereby.
51
Securities transferred to any persons who are not Qualified
Institutional Buyers or Institutional Accredited Investors (other than persons
outside the United States pursuant to sales or transfers in accordance with
Regulation S under the Securities Act) (collectively, "Non-Global Purchasers")
will be issued in registered definitive form without coupons substantially in
the form of Exhibit A (the "Physical Securities"). Upon the transfer to a
Qualified Institutional Buyer, an Institutional Accredited Investor or to a
person outside the United States pursuant to a sale or transfer in accordance
with Regulation S under the Securities Act of Physical Securities initially
issued to a Non-Global Purchaser, such Physical Security will be exchanged for
an interest in a Global Security representing the principal amount of Securities
being transferred.
In case the Company, pursuant to Article Eight, shall be consolidated
or merged with or into any other Person or shall transfer, sell, lease, convey
or otherwise dispose of all or substantially all its assets to any other Person,
and the successor Person resulting from such consolidation, or surviving such
merger, or into which the Company shall have been merged, or the Person which
shall have received a transfer, sale, lease, conveyance or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Securities authenticated or delivered
prior to such consolidation, merger, transfer, sale, lease, conveyance or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at
52
the time Outstanding for Securities authenticated and delivered in such new
name.
SECTION 304. Temporary Securities.
---------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
53
SECTION 305. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as the Company may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as security registrar (the "Security Registrar") for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly
54
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any transfer tax or other similar governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1009, 1016 or
1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the selection of Securities to be redeemed under Section 1104 and
ending at the close of business on the day of such mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If (i) any mutilated Security is surrendered to the Trustee or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity sufficient to save each of
them harmless, then, in the absence of actual notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
55
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other similar
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security 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 Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest may at the Company's
-------- -------
option be paid by mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears in the Security Register.
56
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the Holder on the Regular Record Date by virtue of such Holder
having been a Holder on the Regular Record Date, and such defaulted interest and
(to the extent lawful) interest on such defaulted interest at the rate borne by
the Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its election in each
case, as provided in paragraph (1) or (2) below:
57
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the 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 prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date,
and in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided for in Section
106, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or system on which the Securities may be listed or
eligible for trading, and upon such notice as may be required by such
exchange or system, if, after notice given by the Company to the
Trustee of the proposed
58
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
----------------------
Prior to the due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Sections 305 and 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
59
SECTION 309. Cancellation.
-------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 310. Computation of Interest.
------------------------
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 311. CUSIP Number.
-------------
The Company in issuing the Securities may use a "CUSIP" number (if then
generally in use), and if so, the Trustee may use the CUSIP numbers 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 number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company shall promptly notify the Trustee in writing of any
change in the CUSIP number of the Securities.
60
SECTION 312. Book-Entry Provisions for Global Securities.
--------------------------------------------
(a) The Global Securities initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be deposited with the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit A.
Members of, or participants in, the Depository ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, 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 Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
(i) 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 (ii) 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 Security.
(b) Transfers of Global Securities 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 a Rule 144A Global Security may be transferred
or exchanged for interests in an Institutional Accredited Investor Global
Security or a Regulation S Global Security, interests of beneficial owners in an
Institutional Accredited Investor Global Security may be transferred or
exchanged for interests in a Rule 144A Global Security or a Regulation S Global
Security and interests of beneficial owners in a Regulation S Global Security
may be transferred or exchanged for interests in a Rule 144A Global Security or
an Institutional Accredited Investor Global Security, in each case in accordance
with the rules and procedures of the Depository and the provisions of Section
313. Interests of beneficial owners in the Global Securities may be transferred
or exchanged for Physical Securities in accordance with the rules and procedures
of the Depository and the provisions of Section 313. In addition, Physical
61
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (i) the Depository notifies the
Company that it is unwilling or unable to continue as a depository for such
Global Security or if at any time the Depository ceases to be a clearing agency
registered under the Exchange Act, and a successor depository is not appointed
by the Company within 90 days, (ii) the Company executes and delivers to the
Trustee a notice that such Global Security shall be so transferable, registrable
and exchangeable, and such transfer shall be registrable, or (iii) there shall
have occurred and be continuing a Default or Event of Default with respect to
the Securities represented by such Global Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical Securities
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and principal amount of authorized
denominations.
(d) In connection with the transfer of Global Securities as an entirety
to beneficial owners pursuant to paragraph (b), the Global Securities 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 Securities, an equal aggregate principal amount of Physical
Securities of like tenor of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in a
Global Security pursuant to paragraph (b) or (c) of this Section 312 shall,
except as otherwise provided by paragraph (d) of Section 313, bear the legend
regarding transfer restrictions applicable to the Physical Securities set forth
in Exhibit A.
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(f) The Holder of any Global Security 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 Securities.
(g) In the event that a Global Security is exchanged for Physical
Securities pursuant to this Section 312 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration Statement
with respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of Sections 312 and 313 (including the certification requirements set
forth on the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable exemption
from registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
SECTION 313. Special Transfer Provisions.
----------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any Institutional Accredited Investor which
is not a QIB (excluding transfers to non-U.S. persons):
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which is
two years (or such shorter period as may be prescribed by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later
of the original issue date of such Security (or of any Predecessor
Security) or three months after the last day on which the Company or any
Affiliate of the Company was the owner of such Security or any Predecessor
Security or (y) such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Security stating, or who
has otherwise advised the Company and the Security Registrar in writing,
that the transfer has been made to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
63
the Securities Act) and the proposed transferee has delivered to the
Security Registrar a certificate containing certain representations and
agreements (the form of which certificate can be obtained from the Trustee
or the Company).
(2) Subject to paragraph (1) above, if (i) the proposed transferee is
an Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Institutional Accredited Investor Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on the Security Register the date and an increase
in the principal amount of the Institutional Accredited Investor Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred, and (ii) the proposed transferor is an Agent
Member holding a beneficial interest in a Rule 144A Global Security or a
Regulation S Global Security, upon receipt by the Security Registrar of
instructions given in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect on its books
and records the date of such transfer and (A) a decrease in the principal
amount of such Rule 144A Global Security or Regulation S Global Security,
as the case may be, in an amount equal to the principal amount of the
beneficial interest in a Global Security to be transferred, and (B) an
increase in the principal amount of an Institutional Accredited Investor
Global Security in an amount equal to the principal amount to be
transferred.
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(b) Transfers to Non-U.S. Persons. The following provisions shall apply
-----------------------------
with respect to registration of any proposed transfer of a Security to any
non- U.S. person:
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which
is two years (or such shorter period as may be prescribed by Rule
144(k) under the Securities Act or any successor provision thereunder)
after the later of the original issue date of such Security (or of any
Predecessor Security) or three months after the last day on which the
Company or any Affiliate of the Company was the owner of such Security
or any Predecessor Security or (y) such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Security stating, or who has otherwise advised the Company and the
Security Registrar in writing, that the transfer has been made outside
the U.S. in an offshore transaction within the meaning of Regulation S
in compliance with the exemption from registration under the Securities
Act provided by Rule 904 under the Securities Act.
(2) Subject to paragraph (1) above, if (i) the proposed
transferee is an Agent Member, and the Securities to be transferred
consist of Physical Securities which after transfer are to be evidenced
by an interest in the Regulation S Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on the Security Register the date and an
increase in the principal amount of the Regulation S Global Security in
an amount equal to the principal amount of the Physical Securities to
be transferred, and the Trustee shall cancel the Physical Securities so
transferred, and (ii) the proposed transferor is an Agent Member
holding a beneficial interest in a Rule 144A Global Security or an
Institutional Accredited Investor Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date of such
65
transfer and (A) a decrease in the principal amount of such Rule 144A
Global Security or Institutional Accredited Investor Global Security, as
the case may be, in an amount equal to the principal amount to be
transferred and (B) an increase in the principal amount of a Regulation S
Global Security in an amount equal to the principal amount to be
transferred.
(c) Transfers to QIBs. The following provisions shall apply with respect
------------------
to the registration of any proposed transfer of a Security to any QIB (excluding
transfers to non-U.S. persons):
66
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which is
two years (or such shorter period as may be prescribed by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later
of the original issue date of such Security (or of any Predecessor
Security) or three months after the last day on which the Company or any
Affiliate of the Company was the owner of such Security or any Predecessor
Security or (y) such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Security stating, or who
has otherwise advised the Company and the Security Registrar in writing,
that the transfer has been made in compliance with the exemption from
registration under the Securities Act provided under Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that such transferee represents and warrants that it
is purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that each of 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 the foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
(2) Subject to paragraph (1) above, if (i) the proposed transferee is
an Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Rule 144A Global Security, upon receipt by the Security Registrar of
instructions given in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect on the
Security Register the date and an increase in the principal amount of the
Rule 144A Global Security in an amount equal to the principal
67
amount of the Physical Securities to be transferred, and the Trustee shall
cancel the Physical Securities so transferred, and (ii) the proposed
transferor is an Agent Member holding a beneficial interest in an
Institutional Accredited Investor Global Security or a Regulation S Global
Security, upon receipt by the Security Registrar of instructions given in
accordance with the Depository's and the Security Registrar's procedures,
the Security Registrar shall reflect on its books and records the date of
such transfer and (A) a decrease in the principal amount of such
Institutional Accredited Investor Global Security or Regulation S Global
Security, as the case may be, in an amount equal to the principal amount to
be transferred and (B) an increase in the principal amount of a Rule 144A
Global Security in an amount equal to the principal amount to be
transferred.
(d) Private Placement Legend. (1) Upon the registration of transfer,
------------------------
exchange or replacement of Securities, the Security Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the transfer or
exchange of Initial Securities contemplated by paragraph (d)(2) or (d)(3) below
has occurred or (ii) (x) the circumstances contemplated by clause (a)(1)(x),
(b)(1)(x) or (c)(1)(x) of this Section 313 exist and (y) there is delivered to
the Security Registrar and the Trustee 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.
(2) After a transfer of any Initial Securities during the period of
the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to legends on such Initial
Security will cease to apply, the requirements requiring that any such
Initial Security be issued in global form will cease to apply, and an
Initial Security in certificated or global form without legends will be
available to the transferee of the Holder of such Initial Securities upon
exchange of such transferring Holder's certificated Initial Security. Upon
the occurrence of any of the circumstances
68
described in this paragraph, the Company will deliver an Officers'
Certificate to the Trustee instructing the Trustee to issue Securities
without legends.
(3) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which certain Holders of
such Initial Securities are offered Exchange Securities (other than
Private Exchange Securities) in exchange for their Initial Securities,
all requirements pertaining to such Initial Securities that Initial
Securities be issued in global form will cease to apply, and
certificated Initial Securities with the Private Placement Legend will
be available to Holders of such Initial Securities that do not exchange
their Initial Securities, and Exchange Securities in certificated or
global form will be available to Holders that exchange such Initial
Securities in such Registered Exchange Offer. Upon the occurrence of
any of the circumstances described in this paragraph, the Company will
deliver an Officers' Certificate to the Trustee instructing the Trustee
to issue Securities without legends.
(4) Upon the consummation of a Private Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Private Exchange Securities in exchange
for their Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to certain Holders be
issued in global form will continue to apply, and Private Exchange
Securities in global form will be available to Holders that exchange
such Initial Securities in such Private Exchange Offer.
(e) Other Transfers. If a Holder proposes to transfer a Security
----------------
pursuant to any exemption from the registration requirements of the Securities
Act other than as provided for by Sections 313(a), 313(b) and 313(c) and other
than pursuant to Section 313(d)(4), the Security Registrar shall only register
such transfer or exchange if such transferor delivers to the Security Registrar
and the Trustee an Opinion of Counsel satisfactory to the Company and the
Security Registrar that such transfer is in compliance with the Securities Act
and the terms of this Indenture.
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(f) General. By its acceptance of any Security bearing the Private
--------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or this Section
313 for a period of two years, during which time such letters, notices and other
written communications shall at the written request of the Company be delivered
to the Company. After retaining any such copies of letters, notices and other
written communications for a period of at least two years, all such copies may
be destroyed by the Trustee. 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
Security Registrar.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall cease to be of further effect (subject to Section
1206 and except as to surviving rights of registration of transfer, transfer,
exchange and replacement of Securities expressly provided for herein or pursuant
hereto) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(a) all Outstanding Securities have been delivered to the Trustee
for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
70
(ii) will become due and payable within one year, or
(iii) are to be called for redemption within one year
under irrevocable arrangements satisfactory to the Trustee
in its sole discretion for the giving of notice of
redemption by the Trustee in the name and at the expense of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire
indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, for principal of (and premium, if any,
on), and interest on, the Securities to Maturity or the
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable by the Company hereunder; an d
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations under Sections 607 and 609 and, if money shall have been
deposited with the Trustee pursuant to clause (1)(b) of this Section 401,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
---------------------------
71
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. 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):
(1) failure to pay principal of (or premium, if any, on) any Security
when due; or
(2) failure to pay any interest on any Security when due, continued
for 30 days; or
(3) default in the payment of principal of (and premium, if
any) and interest on Securities required to be purchased pursuant to an
Offer to Purchase pursuant to Section 1009 when due and payable; or
(4) failure to perform or comply with the provisions of Section 801,
803 or 1016; or
(5) failure to perform any covenant or agreement of the
Company or any Guarantor in this Indenture or in any Security (other
than a covenant a default in whose performance is elsewhere in this
Section specifically dealt with) continued for 60 days after written
notice
72
to the Company by the Trustee or Holders of at least 25% in aggregate
principal amount of the Outstanding Securities, which notice shall specify
the default and state that such notice is a "Notice of Default" hereunder;
or
(6) default under the terms of any instrument evidencing or
securing Debt of the Company or any Restricted Subsidiary having an
outstanding principal amount of not less than $25,000,000 or its foreign
currency equivalent at the time which default results in the acceleration
of the payment of such indebtedness or constitutes the failure to pay such
indebtedness when due (after expiration of any applicable grace period); or
(7) the rendering of a judgment or judgments against the
Company or any Restricted Subsidiary in an aggregate amount in excess of
$25,000,000 or its foreign currency equivalent at the time and shall not be
waived, satisfied or discharged for any period of 45 consecutive days
during which a stay of enforcement shall not be in effect; or
(8) any Restricted Subsidiary Guarantee ceases to be in full
force and effect (other than in accordance with the terms of such
Restricted Subsidiary Guarantee) or any Guarantor denies or disaffirms its
obligations under its Restricted Subsidiary Guarantee; or
(9) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under the
Federal Bankruptcy Code or any other applicable federal, state or foreign
law, or appointing a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or of any substantial part of its Property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
or
73
(10) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal, state or foreign law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its Property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(9) or 501(10) with respect to the Company) shall occur and be
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal amount
of all the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount shall become immediately due and payable. If
an Event of Default specified in Section 501(9) or 501(10) occurs with respect
to the Company, the principal amount of all the Securities shall ipso facto
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
74
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in aggregate principal amount of the Outstanding Securities, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Securities which has become due otherwise than
by such declaration of acceleration, and interest on such
unpaid principal at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of
amounts of principal of (or premium, if any, on) Securities which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
--------
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when due, continued for 30 days, or
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(b) default is made in the payment of the principal of (or premium, if
any, on) any Security when due,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities 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 Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
76
SECTION 504. Trustee May File Proofs of Claim.
---------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the Property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as herein 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, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 607.
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 Securities
or the rights of any Holder thereof, or to
77
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
------------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding 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, expenses,
disbursements and advances of the Trustee and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article Five shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
78
SECTION 507. Limitation on Suits.
--------------------
No Holder of any Securities shall have any right to institute any
proceeding with respect to this Indenture or for any other remedy hereunder,
unless
(1) such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request
and offered reasonable indemnity to the Trustee to institute such
proceeding as trustee; and
(3) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Outstanding Securities a
direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
and Interest.
-------------
Notwithstanding any other provision in this Indenture, including
Section 507, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the 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.
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SECTION 509. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, 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 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 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.
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SECTION 512. Control by Holders.
-------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all the Securities,
waive any past Default hereunder and its consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite majority have consented to such waiver and attaching
such consents upon which, subject to Section 104, the Trustee may conclusively
rely. 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.
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SECTION 514. Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights
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and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(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
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or indemnity reasonably satisfactory
to it against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 601.
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SECTION 602. Notice of Default.
------------------
If a Default occurs and is continuing, the Trustee shall transmit, in
the manner and to the extent provided in TIA Section 313(c), notice of such
Default within 60 days after it is known to any Responsible Officer of the
Trustee or written notice of it is received by the Trustee; provided, however,
-------- -------
that, except in the case of a Default in the payment of the principal of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, a trust committee of directors or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders.
The Trustee is not required to take notice or deemed to have
notice of any Event of Default with respect to the Securities, except an Event
of Default under Section 501(1), (2), (3) or (4) hereof (provided that in the
case of Section 501(4), such Event of Default constitutes a failure to purchase
Securities pursuant to an Offer to Purchase pursuant to Section 1016), unless
the Trustee shall have received written notice at its Corporate Trust Office
(which notice shall reference the Securities, the Company and the Indenture) of
such Event of Default from the Company or any Holder or unless a Responsible
Officer of the Trustee shall otherwise have knowledge thereof.
SECTION 603. Certain Rights of Trustee.
--------------------------
Subject to Section 601 and to the provisions of TIA Sections 315(a)
through 315(d):
(1) 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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a
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Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, receive and rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee may act through counsel, agents, custodians
and nominees and shall not be responsible for the misconduct or
negligence of any such person appointed and supervised with due care
and in good faith;
(6) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(7) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be
85
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities.
-----------
The recitals contained herein and in the Securities, except for the
Trustee's certificates 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 or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
--------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
-------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence, willful misconduct
or bad faith; and
(3) to indemnify the Trustee and its directors, officers,
employees and agents for, and to hold them harmless against, any loss,
liability or expense incurred without negligence, willful misconduct or
bad faith on the part of any of them, arising out of or in connection
with the acceptance or administration of this trust, including the
costs and expenses of defending itself or themselves against any claim
or liability in connection with the exercise or performance of any of
its or their powers or duties hereunder.
The obligations of the Company under this Section 607 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any,
on) or interest on particular Securities.
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When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(9) or (10), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable federal, state or foreign bankruptcy, insolvency or other similar
law.
The provisions of this Section 607 shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests.
----------
(a) There shall be at all times a Trustee hereunder which shall be
subject to and comply with the provisions of Section 310(a)(1) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then, for the purposes
of this Section 608, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time a Responsible Officer of the
Trustee shall have actual knowledge that the Trustee ceases to be eligible in
accordance with the provisions of this Section 608, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six.
(b) The Trustee shall be subject to and comply with Section 310(b) of
the Trust Indenture Act.
SECTION 609. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
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(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
608(a) 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 Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the
89
office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If the Company does not promptly appoint a
successor Trustee 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 aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee. In either case,
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 and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
(g) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
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SECTION 610. 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; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
SECTION 611. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
---------
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Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
--------
Person shall be otherwise qualified and eligible under this Article Six, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or transfer of assets to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee.
In all such cases such certificates shall have the full force and effect which
this Indenture provides that the certificate of authentication of the Trustee
shall have; provided, however, that the right to adopt the certificate of
-------- -------
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion, consolidation or transfer of assets.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
---------------------------------------------
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
-------------------
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report at the time of its mailing to Holders shall
be filed with the Commission and the principal national securities exchange (if
any) on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if the
Securities become listed on any national securities exchange or of any delisting
thereof.
SECTION 703. Reports by Company.
-------------------
The Company shall file with the Trustee and deliver to the Holders of
Securities the reports and other information required to be provided by it
pursuant to Section 1007.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
----------------------------------------------
Terms.
------
The Company shall not, in a single transaction or a series of related
transactions, (i) consolidate with or merge into any other Person or Persons or
permit any other Person to consolidate with or merge into the Company or (ii)
directly or indirectly, transfer, sell, lease, convey or otherwise dispose of
all or substantially all its assets to any other Person or Persons, unless:
(1) in a transaction in which the Company is not the surviving
Person or in which the Company transfers, sells, leases, conveys or
otherwise disposes of all or substantially all of its assets to any
other Person, the resulting, surviving or transferee Person (the
"successor entity") is organized under the laws of the United States of
America or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture executed and delivered to
the Trustee in form satisfactory to the Trustee, all of the Company's
obligations under this Indenture;
(2) immediately before and after giving effect to such
transaction and treating any Debt which becomes an obligation of the
Company (or the successor entity) or a Restricted Subsidiary as a
result of such transaction as having been Incurred by the Company or
such Restricted Subsidiary at the time of the transaction, no Default
or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company (or the successor entity) is
equal to or greater than that of the Company immediately prior to the
transaction;
(4) immediately after giving effect to such transaction and
treating any Debt which becomes an obligation of the Company (or the
successor entity) or
94
a Restricted Subsidiary as a result of such transaction as having been
Incurred by the Company or such Restricted Subsidiary at the time of
the transaction, the Company (or the successor entity) could Incur at
least $1.00 of additional Debt pursuant to the provisions of paragraph
(a) of Section 1010 ;
(5) if, as a result of any such transaction, Property of the
Company (or the successor entity) or any Restricted Subsidiary would
become subject to a Lien prohibited by the provisions of Section 1014,
the Company (or the successor entity) shall have secured the Securities
as required by said covenant;
(6) in the case of a transfer, sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company, such assets shall have been transferred as an entirety or
virtually as an entirety to one Person and such Person shall have
complied with all the provisions of this paragraph; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance
reasonably satisfactory to the Trustee, stating that such
consolidation, merger, transfer, sale, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, complies with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with, and, with respect to such
Officers' Certificate, setting forth the manner of determination of the
Consolidated Net Worth, in accordance with clause (3) of this Section
801, of the Company or, if applicable, of the successor entity as
required pursuant to the foregoing.
SECTION 802. Successor Company Substituted.
------------------------------
95
Upon any consolidation of the Company with or merger of the Company
with or into any other Person or any transfer, sale, lease, conveyance or
other disposition of all or substantially all the assets of the Company to
any Person or Persons in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to
which such transfer, sale, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and the predecessor
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person
which shall have become such in the manner described in Section 801),
except in the case of a lease, shall be released from all its obligations
and covenants under this Indenture and the Securities and may be dissolved
and liquidated.
SECTION 803. Guarantor May Consolidate, etc., Only on Certain Terms.
-------------------------------------------------------
The Company shall not permit any Guarantor to, in a single transaction
or a series of related transactions, (i) consolidate with or merge into any
other Person or Persons (other than the Company or another Guarantor) or
permit any other Person (other than the Company or another Guarantor) to
consolidate with or merge into such Guarantor or (ii) directly or
indirectly, transfer, sell, lease, convey or otherwise dispose of all or
substantially all its assets to any other Person or Persons (other than the
Company or another Guarantor), unless:
(1) in a transaction in which such Guarantor is not the
surviving Person or in which such Guarantor transfers, sells, leases,
conveys or otherwise disposes of all or substantially all of its assets
to any other Person, the resulting, surviving or transferee Person (the
"successor guarantor") is organized under the laws of the United States
of America or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture executed and delivered to
the Trustee in form satisfactory to the Trustee, all of such
Guarantor's obligations under this Indenture;
96
(2) immediately before and after giving effect to such
transaction and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary (including the successor guarantor)
as a result of such transaction as having been Incurred by the Company
or such Restricted Subsidiary at the time of the transaction, no
Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company is equal to or greater than that
of the Company immediately prior to the transaction;
(4) immediately after giving effect to such transaction and
treating any Debt which becomes an obligation of the Company or a
Restricted Subsidiary (including the successor guarantor) as a result
of such transaction as having been Incurred by the Company or such
Restricted Subsidiary at the time of the transaction, the Company could
Incur at least $1.00 of additional Debt pursuant to the provisions of
paragraph (a) of Section 1010;
(5) if, as a result of any such transaction, Property of the
Company or any Restricted Subsidiary (including the successor
guarantor) would become subject to a Lien prohibited by the provisions
of Section 1014, the Company shall have secured the Securities as
required by said covenant;
(6) in the case of a transfer, sale, lease, conveyance or
other disposition of all or substantially all of the assets of such
Guarantor, such assets shall have been transferred as an entirety or
virtually as an entirety to one Person and such Person shall have
complied with all the provisions of this paragraph; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance
reasonably satisfactory to the Trustee, stating that such
consolidation, merger, transfer, sale, lease, conveyance or other
disposition and, if a supplemental indenture is required in
97
connection with such transaction, such supplemental indenture, complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with, and, with respect
to such Officers' Certificate, setting forth the manner of
determination of the Consolidated Net Worth, in accordance with clause
(3) of this Section 803, of such Guarantor or, if applicable, of the
successor guarantor as required pursuant to the foregoing.
SECTION 804. Successor Guarantor Substituted.
--------------------------------
Upon any consolidation of a Guarantor with or merger of a Guarantor
with or into any other Person or any transfer, sale, lease, conveyance or
other disposition of all or substantially all the assets of a Guarantor to
any Person or Persons in accordance with Section 803, the successor Person
formed by such consolidation or into which such Guarantor is merged or to
which such transfer, sale, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of, such Guarantor under this Indenture with the same effect as if
such successor Person had been named as a Guarantor herein, and the
predecessor Guarantor (which term shall for this purpose mean the Person
named as the "New Guarantor" in the first paragraph of the applicable
supplemental indenture or any successor Person which shall have become such
in the manner described in Section 803), except in the case of a lease,
shall be released from all its obligations and covenants under its
Restricted Subsidiary Guarantee and the Securities and may be dissolved and
liquidated.
98
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
The Company and the Trustee may, at any time and from time to time,
without notice to or consent of any Holders of Securities, enter into one
or more indentures supplemental hereto:
(1) to evidence the succession of another Person to the
Company or a Guarantor and the assumption by such successor of the
covenants of the Company or such Guarantor herein and in the
Securities; or
(2) to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power conferred upon the
Company hereby; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or
in place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a successor Trustee pursuant to the requirements of
Section 610; or
(6) to secure the Securities; or
(7) to comply with the Trust Indenture Act or the Securities
Act (including Regulation S promulgated thereunder); or
(8) to add additional Guarantees with respect to the
Securities or to release Guarantors from Restricted Subsidiary
Guarantees as provided by the terms of this Indenture; or
(9) to cure any ambiguity herein, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to add any other provision with respect to matters or
questions arising under this Indenture; provided such
--------
99
actions shall not adversely affect the interests of the Holders in any
material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of such Holders
delivered to the Company and the Trustee, the Company and the Trustee may
enter into one or more indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or waiving or otherwise modifying in any
manner the rights of the Holders, provided that no such supplemental
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indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the interest thereon that would be due and payable
upon the Stated Maturity thereof, or change the place of payment where,
or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof; or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is necessary for
any such supplemental indenture or required for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults hereunder; or
(3) subordinate in right of payment, or otherwise subordinate,
the Securities to any other Debt; or
(4) except as otherwise provided herein, release any security
interest that may have been granted in favor of the Holders of the
Securities; or
(5) reduce the premium payable upon the redemption of any
Security nor change the time at which any Security may be redeemed, as
described in Exhibit A; or
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(6) reduce the premium payable upon a Change of Control
Triggering Event or, at any time after a Change of Control Triggering
Event has occurred, change the time at which the Offer to Purchase
relating thereto must be made or at which the Securities must be
repurchased pursuant to such Offer to Purchase; or
(7) at any time after the Company is obligated to make an
Offer to Purchase with the Net Available Proceeds from Asset
Dispositions, change the time at which such Offer to Purchase must be
made or at which the Securities must be repurchased pursuant thereto;
or
(8) make any change in any Restricted Subsidiary Guarantee
that would adversely affect the Holders of the Securities; or
(9) modify any provision of this Section 902 (except to
increase any percentage set forth herein).
It shall not be necessary for any Act of Holders under this Section 902
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture 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 stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and an Officers'
Certificate stating that all conditions precedent to the execution of such
supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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SECTION 904. Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this Article Nine
shall conform as a matter of contract or law to the requirements of the
Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may bear a notation in
form approved by the Trustee and the Company as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
----------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Article Nine, the Company shall
give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms
the substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
----------------------------------------------------
The Company covenants and agrees for the benefit of the Holders that it
shall duly and punctually pay the principal of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
--------------------------------
The Company shall maintain in The City of New York an office or agency
where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Corporate Trust Office of
the Trustee shall 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 shall 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) where the
Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; provided, however, that
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no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York
for such purposes. The Company shall give prompt written notice to the
Trustee of
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any such designation or rescission and any change in the location of any
such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of the principal of (or premium, if any) or
interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal of (or 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 shall promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Securities, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section
1003, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest;
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) indemnify the Trustee and its officers, directors,
employees and agents against any loss, cost or liability caused by, or
incurred as a result of, such Paying Agent's acts or omissions.
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 shall be released from all further
liability with respect to such sums.
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 Security and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
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SECTION 1004. 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) and franchises of the
Company and each Subsidiary of the Company; provided, however, that the
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Company shall not be required to preserve, with respect to the Company, any
such right or franchise or, with respect to any such Subsidiary (subject to
all the other covenants in this Indenture), any such corporate existence,
right or franchise, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
--------------------------
The Company shall cause all properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 1005 shall prevent
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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 Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Insurance.
----------
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The Company shall at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character is usually so insured by
companies similarly situated and owning like properties.
SECTION 1007. Reports.
--------
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor
provision thereto if the Company were subject thereto, such documents to be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required to
file them. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such
Holders, and (ii) file with the Trustee copies of the annual reports,
quarterly reports and other documents (without exhibits) which the Company
would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act or any successor provisions thereto if
the Company were subject thereto and (b) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act,
promptly upon written request, supply copies of such documents (without
exhibits) to any prospective Holder.
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SECTION 1008. Statement by Officers as to Default.
------------------------------------
(a) The Company shall deliver to the Trustee, on the date of delivery
of each annual report to be delivered pursuant to Section 1007, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance during the period covered by such report with all conditions and
covenants under this Indenture. If the signer has knowledge of any noncompliance
that occurred during such period, the certificate shall describe its status and
what action the Company has taken or is taking or proposes to take with respect
thereto. For purposes of this Section 1008(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of Debt 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 Debt in the
principal amount of less than $25,000,000 or its foreign currency equivalent at
the time), the Company shall, within 30 days of such occurrence, notice or other
action, deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission an Officers' Certificate specifying such event,
notice or other action, its status and what action the Company is taking or
purposes to take with respect thereto.
SECTION 1009. Change of Control Triggering Event.
-----------------------------------
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require that the Company repurchase such Holder's
Securities in whole or in part in integral multiples of $1,000, in accordance
with the procedures set forth in this Section 1009 and this Indenture.
(b) Within 30 days of the occurrence of both a Change of Control and
a Rating Decline with respect to the Securities (a "Change of Control Triggering
Event"), the Company will be required to make an Offer to Purchase all
Outstanding Securities at a price in cash equal to 101% of
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the principal amount of the Securities on the purchase date, plus accrued and
unpaid interest (if any) to such purchase date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date).
(c) The Company and the Trustee shall perform their respective
obligations for the Offer to Purchase as specified in the Offer. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) irrevocably deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) money sufficient to pay the Purchase Price
of all Securities or portions thereof so accepted (provided that such deposit
may be made no later than 11:00 A.M. New York City time on the Purchase Date if
the Company elects) and (iii) deliver or cause to be delivered to the Trustee
all Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Purchase Price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. In the event
that the aggregate Purchase Price is less than the amount delivered by the
Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as
the case may be, shall deliver the excess to the Company immediately after the
Purchase Date.
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(d) A "Change of Control" means the occurrence of any of the
following events:
(i) if any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act or any successor provisions to either
of the foregoing), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule 13d-
5(b)(1) under the Exchange Act, other than any one or more of the Permitted
Holders, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a person will be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 35% or more of the total voting power of
the Voting Stock of the Company; provided, however, that the Permitted
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Holders are the "beneficial owners" (as defined in Rule 13d-3 under the
Exchange Act, except that a person will be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, in the aggregate of a lesser percentage of
the total voting power of the Voting Stock of the Company than such other
person or group (for purposes of this clause (i), such person or group
shall be deemed to beneficially own any Voting Stock of a corporation (the
"specified corporation") held by any other corporation (the "parent
corporation") so long as such person or group beneficially owns, directly
or indirectly, in the aggregate a majority of the total voting power of the
Voting Stock of such parent corporation); or
(ii) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the assets
of the Company and the Restricted Subsidiaries, considered as a whole
(other than a disposition of such assets as an entirety or virtually as an
entirety to a Wholly Owned Restricted Subsidiary or one or more Permitted
Holders) shall have occurred; or
110
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election or appointment by such board or whose
nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors then in office; or
(iv) the shareholders of the Company shall have approved any plan of
liquidation or dissolution of the Company.
(e) The Company shall not be required to make an Offer to Purchase upon a
Change of Control Triggering Event if a third party makes the Offer to Purchase
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to an Offer to Purchase made by the
Company and purchases all Securities validly tendered and not withdrawn under
such Offer to Purchase.
(f) In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 1010. Limitation on Consolidated Debt.
--------------------------------
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(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur any Debt, unless, after giving pro forma
effect to such Incurrence and the receipt and application of the net proceeds
thereof, no Default or Event of Default would occur as a consequence of such
Incurrence or be continuing following such Incurrence and either (i) the ratio
of (A) the aggregate consolidated principal amount (or, in the case of Debt
issued at a discount, the then-Accreted Value) of Debt of the Company and its
Restricted Subsidiaries outstanding as of the most recent available quarterly or
annual balance sheet, after giving pro forma effect to the Incurrence of such
Debt and any other Debt Incurred or repaid since such balance sheet date and the
receipt and application of the net proceeds thereof, to (B) Consolidated Cash
Flow Available for Fixed Charges for the four full fiscal quarters next
preceding the Incurrence of such Debt for which consolidated financial
statements are available, would be less than 5.0 to 1.0, or (ii) the Company's
Consolidated Capital Ratio as of the most recent available quarterly or annual
balance sheet, after giving pro forma effect to (x) the Incurrence of such Debt
and any other Debt Incurred or repaid since such balance sheet date, (y) the
issuance of any Capital Stock (other than Disqualified Stock) of the Company
since such balance sheet date, including the issuance of any Capital Stock to be
issued concurrently with the Incurrence of such Debt, and (z) the receipt and
application of the net proceeds of such Debt or Capital Stock, as the case may
be, is less than 2.25 to 1.0.
(b) Notwithstanding the foregoing limitation, the Company or any
Restricted Subsidiary may Incur any and all of the following (each of which
shall be given independent effect):
(i) Debt under the Securities, this Indenture or any Restricted
Subsidiary Guarantee;
(ii) Debt under Credit Facilities in an aggregate principal amount
outstanding or available (together with all refinancing Debt outstanding or
available pursuant to clause (viii) below in respect of Debt previously
Incurred pursuant to this clause (ii)) at any one time not to exceed the
greater of (x) $750,000,000, which amount shall be permanently
112
reduced by the amount of Net Available Proceeds used to repay Debt under
the Credit Facilities, and not reinvested in Telecommunications/IS Assets
or used to purchase Securities or repay other Debt, pursuant to and as
permitted by Section 1016, and (y) 85% of the Eligible Receivables;
(iii) Purchase Money Debt, provided that the amount of such Purchase
--------
Money Debt does not exceed 100% of the cost of the construction,
installation, acquisition, lease, development or improvement of the
applicable Telecommunications/IS Assets;
(iv) Subordinated Debt of the Company; provided, however, that the
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aggregate principal amount (or, in the case of Debt issued at a discount,
the Accreted Value) of such Debt, together with any other outstanding Debt
Incurred pursuant to this clause (iv), shall not exceed $500,000,000 at any
one time (which amount shall be permanently reduced by the amount of Net
Available Proceeds used to repay Subordinated Debt of the Company, and not
reinvested in Telecommunications/IS Assets or used to purchase Securities
or repay other Debt, pursuant to and as permitted by Section 1016), except
to the extent such Debt in excess of $500,000,000 (A) is subordinated to
all other Debt of the Company other than Debt Incurred pursuant to this
clause (iv) in excess of such $500,000,000 limitation, (B) does not provide
for the payment of cash interest on such Debt prior to the Stated Maturity
of the Securities and (C) (1) does not provide for payments of principal of
such Debt at stated maturity or by way of a sinking fund applicable thereto
or by way of any mandatory redemption, defeasance, retirement or repurchase
thereof by the Company (including any redemption, retirement or repurchase
which is contingent upon events or circumstances, but excluding any
retirement required by virtue of the acceleration of any payment with
respect to such Debt upon any event of default thereunder), in each case on
or prior to the Stated Maturity of the Securities, and (2) does not permit
redemption or other retirement (including pursuant to an offer to purchase
made by the Company but excluding through conversion into Capital Stock of
the Company, other than Disqualified Stock, without any payment by the
Company
113
or its Restricted Subsidiaries to the holders thereof other than in respect
of fractional shares) of such Debt at the option of the holder thereof on
or prior to the Stated Maturity of the Securities;
(v) Debt outstanding on the Measurement Date;
(vi) Debt owed by the Company to any Restricted Subsidiary of the
Company or Debt owed by a Restricted Subsidiary of the Company to the
Company or a Restricted Subsidiary of the Company; provided, however, that
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(x) upon the transfer, conveyance or other disposition by such Restricted
Subsidiary or the Company of any Debt so permitted to a Person other than
the Company or another Restricted Subsidiary of the Company or (y) if for
any reason such Restricted Subsidiary ceases to be a Restricted Subsidiary,
the provisions of this clause (vi) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been Incurred by the issuer
thereof at the time of such transfer, conveyance or other disposition or
when such Restricted Subsidiary ceases to be a Restricted Subsidiary;
(vii) Debt Incurred by a Person prior to the time (A) such Person
became a Restricted Subsidiary, (B) such Person merges into or consolidates
with a Restricted Subsidiary or (C) another Restricted Subsidiary merges
into or consolidates with such Person (in a transaction in which such
Person becomes a Restricted Subsidiary), which Debt was not Incurred in
anticipation of such transaction and was outstanding prior to such
transaction;
(viii) Debt Incurred to renew, extend, refinance, defease, repay,
prepay, repurchase, redeem, retire, exchange or refund (each, a
"refinancing") Debt Incurred pursuant to clause (i), (ii), (iii), (v),
(vii) or (xii) of this paragraph (b) or this clause (viii), in an aggregate
principal amount (or if issued at a discount, the then-Accreted Value) not
to exceed the aggregate principal amount (or if issued at a discount, the
then-Accreted Value) of and accrued interest on the Debt so refinanced plus
the amount of any premium required to be paid in connection with such
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refinancing pursuant to the terms of the Debt so refinanced or the amount
of any premium reasonably determined by the Board of Directors as necessary
to accomplish such refinancing by means of a tender offer or privately
negotiated repurchase, plus the expenses of the Company Incurred in
connection with such refinancing; provided, however, that (A) the
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refinancing Debt shall not be senior in right of payment to the Debt that
is being refinanced and (B) in the case of any refinancing of Debt Incurred
pursuant to clause (i), (v), (vii) or (xii) or, if such Debt previously
refinanced Debt Incurred pursuant to any such clause, this clause (viii),
the refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (x) does not provide for
payments of principal of such Debt at stated maturity or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of the
acceleration of any payment with respect to such Debt upon any event of
default thereunder), in each case prior to the time the same are required
by the terms of the Debt being refinanced and (y) does not permit
redemption or other retirement (including pursuant to an offer to purchase
made by the Company) of such Debt at the option of the holder thereof prior
to the time the same are required by the terms of the Debt being
refinanced, other than, in the case of clause (x) or (y), any such payment,
redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon a change of control pursuant to provisions substantially
similar to those described under Section 1009;
(ix) Debt (A) in respect of performance, surety or appeal bonds,
Guarantees, letters of credit or reimbursement obligations Incurred or
provided in the ordinary course of business securing the performance of
contractual, franchise, lease, self-insurance or license obligations and
not in connection with the Incurrence of Debt or (B) in respect of
customary
115
agreements providing for indemnification, adjustment of purchase price
after closing, or similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any such obligations of
the Company or any of its Restricted Subsidiaries pursuant to such
agreements, Incurred in connection with the disposition of any business,
assets or Restricted Subsidiary of the Company (other than Guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary of the Company for the purpose of
financing such acquisition) and in an aggregate principal amount not to
exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
(x) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(xi) Debt not otherwise permitted to be Incurred pursuant to clauses
(i) through (x) above or clause (xii) below, which, together with any other
outstanding Debt Incurred pursuant to this clause (xi), has an aggregate
principal amount not in excess of $50,000,000 at any time outstanding; and
(xii) Issue Date Purchase Money Debt and Debt under the Existing
Notes, the New Convertible Notes, the Dollar Notes, the Euro Notes and the
related indentures and any restricted subsidiary Guarantees issued in
accordance with such related indentures.
(c) Notwithstanding any other provision of this Section 1010, the maximum
amount of Debt that the Company or a Restricted Subsidiary may Incur pursuant to
this Section 1010 shall not be deemed to be exceeded due solely to the result of
fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of Debt under this
Section 1010, (i) Guarantees, Liens or obligations with respect to letters of
credit supporting Debt otherwise included in the determination of such
particular amount shall not be included and (ii) any Liens granted for the
benefit of the Securities pursuant to the
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provisions referred to in the first paragraph of Section 1014 shall not be
treated as Debt. For purposes of determining any particular amount of Debt under
this Section 1010, if any such Debt denominated in a different currency is
subject to a currency agreement that constitutes a Permitted Interest Rate or
Currency Protection Agreement with respect to U.S. dollars covering all
principal of, premium, if any, and interest payable on such Debt, the amount of
such Debt expressed in U.S. dollars will be as provided in such currency
agreement. For purposes of determining compliance with this Section 1010, in the
event that an item of Debt meets the criteria of more than one of the types of
Debt described in the above clauses, the Company, in its sole discretion, shall
classify such item of Debt and only be required to include the amount and type
of such Debt in one of such clauses.
SECTION 1011. Limitation on Debt of Restricted Subsidiaries.
----------------------------------------------
The Company shall not permit any Restricted Subsidiary that is not a
Guarantor to Incur any Debt except any and all of the following (each of which
shall be given independent effect):
(i) Restricted Subsidiary Guarantees;
(ii) Debt outstanding on the Measurement Date;
(iii) Debt of Restricted Subsidiaries under Credit Facilities
permitted to be Incurred pursuant to clause (ii) of paragraph (b) of
Section 1010;
(iv) Purchase Money Debt of Restricted Subsidiaries permitted to be
Incurred pursuant to clause (iii) of paragraph (b) of Section 1010;
(v) Debt owed by a Restricted Subsidiary to the Company or a
Restricted Subsidiary of the Company permitted to be Incurred pursuant to
clause (vi) of paragraph (b) of Section 1010;
(vi) Debt of Restricted Subsidiaries consisting of Permitted Interest
Rate or Currency Protection
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Agreements permitted to be Incurred pursuant to clause (x) of paragraph (b)
of Section 1010;
(vii) Debt of Restricted Subsidiaries permitted to be Incurred under
clause (vii) of paragraph (b) of Section 1010 or Issue Date Purchase Money
Debt permitted to be Incurred under clause (xii) of paragraph (b) of
Section 1010;
(viii) Debt of Restricted Subsidiaries permitted to be Incurred under
clause (ix) or (xi) of paragraph (b) of Section 1010; and
(ix) Debt which is Incurred to refinance any Debt of a Restricted
Subsidiary permitted to be Incurred pursuant to clauses (i), (ii), (iii),
(iv) and (vii) of this paragraph or this clause (ix), in an aggregate
principal amount (or if issued at a discount, the then-Accreted Value) not
to exceed the aggregate principal amount (or if issued at a discount, the
then-Accreted Value) of the Debt so refinanced, plus the amount of any
premium required to be paid in connection with such refinancing pursuant to
the terms of the Debt so refinanced or the amount of any premium reasonably
determined by the Board of Directors as necessary to accomplish such
refinancing by means of a tender offer or privately negotiated repurchase,
plus the amount of expenses of the Company and the applicable Restricted
Subsidiary Incurred in connection therewith; provided, however, that, in
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the case of any refinancing of Debt Incurred pursuant to clause (i), (ii)
or (vii) or, if such Debt previously refinanced Debt Incurred pursuant to
any such clause, this clause (ix), the refinancing Debt by its terms, or by
the terms of any agreement or instrument pursuant to which such Debt is
Incurred, (x) does not provide for payments of principal at the stated
maturity of such Debt or by way of a sinking fund applicable to such Debt
or by way of any mandatory redemption, defeasance, retirement or repurchase
of such Debt by the Company or any Restricted Subsidiary (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each
case prior to the time the same
118
are required by the terms of the Debt being refinanced and (y) does not
permit redemption or other retirement (including pursuant to an offer to
purchase made by the Company or a Restricted Subsidiary) of such Debt at
the option of the holder thereof prior to the stated maturity of the Debt
being refinanced, other than, in the case of clause (x) or (y), any such
payment, redemption or other retirement (including pursuant to an offer to
purchase made by the Company or a Restricted Subsidiary) which is
conditioned upon the change of control of the Company pursuant to
provisions substantially similar to those contained in Section 1009.
Notwithstanding any other provision of this Section 1011, the maximum
amount of Debt that a Restricted Subsidiary may Incur pursuant to this Section
1011 shall not be deemed to be exceeded due solely as the result of fluctuations
in the exchange rates of currencies.
For purposes of determining any particular amount of Debt under this
Section 1011, Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such particular
amount shall not be included. For purposes of determining compliance with this
Section 1011, in the event that an item of Debt meets the criteria of more than
one of the types of Debt described in the above clauses, the Company, in its
sole discretion, shall classify such item of Debt and only be required to
include the amount and type of such Debt in one of such clauses.
SECTION 1012. Limitation on Restricted Payments.
----------------------------------
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(a) The Company (i) shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, declare or pay any dividend, or make any
distribution, in respect of its Capital Stock or to the holders thereof,
excluding any dividends or distributions which are made solely to the Company or
a Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly
Owned Subsidiary, to the other stockholders of such Restricted Subsidiary on a
pro rata basis or on a basis that results in the receipt by the Company or a
Restricted Subsidiary of dividends or distributions of greater value than it
would receive on a pro rata basis) or any dividends or distributions payable
solely in shares of Capital Stock of the Company (other than Disqualified Stock)
or in options, warrants or other rights to acquire Capital Stock of the Company
(other than Disqualified Stock); (ii) shall not, and shall not permit any
Restricted Subsidiary to, purchase, redeem, or otherwise retire or acquire for
value (x) any Capital Stock of the Company or any Restricted Subsidiary of the
Company or (y) any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company or any Restricted Subsidiary or any securities
convertible or exchangeable into shares of Capital Stock of the Company or any
Restricted Subsidiary, except, in any such case, any such purchase, redemption
or retirement or acquisition for value (A) paid to the Company or a Restricted
Subsidiary (or, in the case of any such purchase, redemption or other retirement
or acquisition for value with respect to a Restricted Subsidiary that is not a
Wholly Owned Subsidiary, to the other stockholders of such Restricted Subsidiary
on a pro rata basis or on a basis that results in the receipt by the Company or
a Restricted Subsidiary of payments of greater value than it would receive on a
pro rata basis) or (B) paid solely in shares of Capital Stock (other than
Disqualified Stock) of the Company; (iii) shall not make, or permit any
Restricted Subsidiary to make, any Investment (other than an Investment in the
Company or a Restricted Subsidiary or a Permitted Investment) in any Person,
including the Designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, or the Revocation of any such Designation, according to Section
1019; (iv) shall not, and shall not permit any Restricted Subsidiary to, redeem,
defease, repurchase, retire or otherwise acquire or retire for value, prior to
any scheduled maturity, repayment or sinking fund payment, Debt of the Company
which is subordin-
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ate in right of payment to the Securities (other than any redemption,
defeasance, repurchase, retirement or other acquisition or retirement for value
made in anticipation of satisfying a scheduled maturity, repayment or sinking
fund obligation due within one year thereof); and (v) shall not, and shall not
permit any Restricted Subsidiary to, issue, transfer, convey, sell or otherwise
dispose of Capital Stock of any Restricted Subsidiary to a Person other than the
Company or another Restricted Subsidiary if the result thereof is that such
Restricted Subsidiary shall cease to be a Restricted Subsidiary, in which event
the amount of such "Restricted Payment" shall be the Fair Market Value of the
remaining interest, if any, in such former Restricted Subsidiary held by the
Company and the other Restricted Subsidiaries (each of clauses (i) through (v)
being a "Restricted Payment") if: (1) an Event of Default, or an event that with
the passing of time or the giving of notice, or both, would constitute an Event
of Default, shall have occurred and be continuing, or (2) upon giving effect to
such Restricted Payment, the Company could not Incur at least $1.00 of
additional Debt pursuant to paragraph (a) of Section 1010, or (3) upon giving
effect to such Restricted Payment, the aggregate of all Restricted Payments made
on or after the Measurement Date, including Restricted Payments made pursuant to
clause (A) or (B) of the proviso at the end of this sentence, and Permitted
Investments made on or after the Measurement Date pursuant to clause (i) or (j)
of the definition thereof (the amount of any such Restricted Payment or
Permitted Investment, if made other than in cash, to be based upon Fair Market
Value) exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or, in
the case that Consolidated Net Income shall be negative, 100% of such negative
amount) since the end of the last full fiscal quarter prior to the Measurement
Date through the last day of the last full fiscal quarter ending at least 45
days prior to the date of such Restricted Payment and (b) plus, in the case of
any Revocation made after the Measurement Date, an amount equal to the lesser of
the portion (proportionate to the Company's equity interest in the Subsidiary to
which such Revocation relates) of the Fair Market Value of the net assets of
such Subsidiary at the time of Revocation and the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Subsidiary; provided, however, that the Company or
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a Restricted Subsidiary of the Company
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may, without regard to the limitations in clause (3) but subject to clauses (1)
and (2), make (A) Restricted Payments in an aggregate amount not to exceed the
sum of $50,000,000 and the aggregate net cash proceeds received after the
Measurement Date (i) as capital contributions to the Company, from the issuance
(other than to a Subsidiary or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of their
employees) of Capital Stock (other than Disqualified Stock) of the Company, and
(ii) from the issuance or sale of Debt of the Company or any Restricted
Subsidiary (other than to a Subsidiary, the Company or an employee stock
ownership plan or trust established by the Company or any such Subsidiary for
the benefit of their employees) that after the Measurement Date has been
converted into or exchanged for Capital Stock (other than Disqualified Stock) of
the Company and (B) Investments in Persons engaged in the Telecommunications/IS
Business in an aggregate amount not to exceed the after-tax gain on the sale,
after the Measurement Date, of Special Assets to the extent sold for cash, Cash
Equivalents, Telecommunications/IS Assets or the assumption of Debt of the
Company or any Restricted Subsidiary (other than Debt that is subordinated to
the Securities or any applicable Restricted Subsidiary Guarantee) and release of
the Company and all Restricted Subsidiaries from all liability on the Debt
assumed. The aggregate net cash proceeds referred to in the immediately
preceding clauses (A)(i) and (A)(ii) shall not be utilized to make Restricted
Payments pursuant to such clauses to the extent such proceeds have been utilized
to make Permitted Investments under clause (i) of the definition of "Permitted
Investments."
(b) Notwithstanding the foregoing limitation, (i) the Company may pay any
dividend on Capital Stock of any class of the Company within 60 days after the
declaration thereof if, on the date when the dividend was declared, the Company
could have paid such dividend in accordance with the foregoing provisions;
provided, however, that at the time of such payment of such dividend, no other
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Event of Default shall have occurred and be continuing (or result therefrom);
(ii) the Company may repurchase any shares of its Common Stock or options to
acquire its Common Stock from Persons who were formerly directors, officers or
employees of the Company or any of its Subsidiaries or other Affiliates in an
amount not to exceed $3,000,000 in any 12-month period;
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(iii) the Company and any Restricted Subsidiary may refinance any Debt otherwise
permitted by clause (viii) of paragraph (b) of Section 1010 or clause (ix) of
Section 1011; (iv) the Company and any Restricted Subsidiary may retire or
repurchase any Capital Stock of the Company or of any Restricted Subsidiary or
any Subordinated Debt of the Company in exchange for, or out of the proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company or
an employee stock ownership plan or trust established by the Company or any such
Subsidiary for the benefit of their employees) of, Capital Stock (other than
Disqualified Stock) of the Company, provided that the proceeds from any such
--------
exchange or sale of Capital Stock shall be excluded from any calculation
pursuant to clause (A)(i) in the proviso at the end of paragraph (a) above or
pursuant to clause (b) of the definition of "Invested Capital"; and (v) the
Company may pay cash dividends in any amount not in excess of $50,000,000 in any
12-month period in respect of Preferred Stock of the Company (other than
Disqualified Stock). The Restricted Payments described in the foregoing clauses
(i), (ii) and (v) shall be included in the calculation of Restricted Payments;
the Restricted Payments described in clauses (iii) and (iv) shall be excluded in
the calculation of Restricted Payments.
SECTION 1013. Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries.
----------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction (other than
pursuant to law or regulation) on the ability of any Restricted Subsidiary (i)
to pay dividends (in cash or otherwise) or make any other distributions in
respect of its Capital Stock owned by the Company or any other Restricted
Subsidiary or pay any Debt or other obligation owed to the Company or any other
Restricted Subsidiary, (ii) to make loans or advances to the Company or any
other Restricted Subsidiary or (iii) to transfer any of its Property to the
Company or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, the Company may, and may
permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist (i) any
123
encumbrance or restriction pursuant to any agreement in effect on the
Measurement Date, (ii) any customary (as conclusively determined in good faith
by the Chief Financial Officer of the Company) encumbrance or restriction
applicable to a Restricted Subsidiary that is contained in an agreement or
instrument governing or relating to Debt contained in any Credit Facilities or
Purchase Money Debt, provided that such encumbrances and restrictions permit the
--------
distribution of funds to the Company in an amount sufficient for the Company to
make the timely payment of interest, premium (if any) and principal (whether at
stated maturity, by way of a sinking fund applicable thereto, by way of any
mandatory redemption, defeasance, retirement or repurchase thereof, including
upon the occurrence of designated events or circumstances or by virtue of
acceleration upon an event of default, or by way of redemption or retirement at
the option of the holder of the Debt, including pursuant to offers to purchase)
according to the terms of this Indenture and the Securities and other Debt that
is solely an obligation of the Company, but provided further that such agreement
----------------
may nevertheless contain customary (as so determined) net worth, leverage,
invested capital and other financial covenants, customary (as so determined)
covenants regarding the merger of or sale of all or any substantial part of the
assets of the Company or any Restricted Subsidiary, customary (as so determined)
restrictions on transactions with affiliates and customary (as so determined)
subordination provisions governing Debt owed to the Company or any Restricted
Subsidiary, (iii) any encumbrance or restriction pursuant to an agreement
relating to any Acquired Debt, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so acquired, (iv) any encumbrance or restriction pursuant to an
agreement effecting a refinancing of Debt Incurred pursuant to an agreement
referred to in clause (i), (ii) or (iii) of this paragraph (b), provided,
--------
however, that the provisions contained in such agreement relating to such
-------
encumbrance or restriction are no more restrictive (as so determined) in any
material respect than the provisions contained in the agreement the subject
thereof, (v) in the case of clause (iii) of paragraph (a) above, any encumbrance
or restriction contained in any security agreement (including a Capital Lease
Obligation) securing Debt of the Company or a Restricted Subsidiary otherwise
permitted under this
124
Indenture, but only to the extent such restrictions restrict the transfer of the
Property subject to such security agreement, (vi) in the case of clause (iii) of
paragraph (a) above, customary provisions (A) that restrict the subletting,
assignment or transfer of any Property that is a lease, license, conveyance or
similar contract, (B) contained in asset sale or other asset disposition
agreements limiting the transfer of the Property being sold or disposed of
pending the closing of such sale or disposition or (C) arising or agreed to in
the ordinary course of business, not relating to any Debt, and that do not,
individually or in the aggregate, detract from the value of Property of the
Company or any Restricted Subsidiary in any manner material to the Company or
any Restricted Subsidiary, (vii) any encumbrance or restriction with respect to
a Restricted Subsidiary imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of the Capital
Stock or Property of such Restricted Subsidiary, provided that the consummation
--------
of such transaction would not result in a Default or an Event of Default, that
such restriction terminates if such transaction is abandoned and that the
consummation or abandonment of such transaction occurs within one year of the
date such agreement was entered into, and (viii) any encumbrance or restriction
pursuant to this Indenture and the Securities.
SECTION 1014. Limitation on Liens.
--------------------
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, Incur or suffer to exist any Lien on or with respect to
any Property now owned or acquired after the Measurement Date to secure any Debt
without making, or causing such Restricted Subsidiary to make, effective
provision for securing the Securities (x) equally and ratably with such Debt as
to such Property for so long as such Debt will be so secured or (y) in the event
such Debt is Debt of the Company or a Guarantor which is subordinate in right of
payment to the Securities or the applicable Restricted Subsidiary Guarantee,
prior to such Debt as to such Property for so long as such Debt will be so
secured.
The foregoing restrictions shall not apply to: (i) Liens existing on the
Measurement Date and securing Debt
125
outstanding on the Measurement Date or Incurred by the Company or a Restricted
Subsidiary on or after the Measurement Date pursuant to any Credit Facility to
secure Debt permitted to be Incurred by the Company or such Restricted
Subsidiary pursuant to clause (ii) of paragraph (b) under Section 1010; (ii)
Liens securing Debt in an amount which, together with the aggregate amount of
Debt then outstanding or available under all Credit Facilities (together with
all refinancing Debt then outstanding or available pursuant to clause (viii) of
paragraph (b) of Section 1010 in respect of Debt previously Incurred under
Credit Facilities), does not exceed 1.5 times the Company's Consolidated Cash
Flow Available for Fixed Charges for the four full fiscal quarters preceding the
Incurrence of such Lien for which the Company's consolidated financial
statements are available, determined on a pro forma basis as if such Debt had
been Incurred and the proceeds thereof had been applied at the beginning of such
four fiscal quarters; (iii) Liens in favor of the Company or any Restricted
Subsidiary; provided, however, that any subsequent issue or transfer of Capital
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Stock or other event that results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of the Debt secured by any
such Lien (except to the Company or a Restricted Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Lien by the issuer thereof; (iv)
Liens Incurred by the Company or a Restricted Subsidiary to secure Purchase
Money Debt permitted to be Incurred by the Company or such Restricted Subsidiary
pursuant to clause (iii) of paragraph (b) under Section 1010, provided that any
--------
such Lien may not extend to any Property other than the Telecommunications/IS
Assets installed, constructed, acquired, leased, developed or improved with the
proceeds of such Purchase Money Debt and any improvements or accessions thereto
(it being understood that all Debt to any single lender or group of related
lenders or outstanding under any single credit facility, and in any case
relating to the same group or collection of Telecommunications/IS Assets
financed thereby, shall be considered a single Purchase Money Debt, whether
drawn at one time or from time to time); (v) Liens to secure Acquired Debt,
provided that (a) such Lien attaches to the acquired Property prior to the time
--------
of the acquisition of such Property and (b) such Lien does not extend to or
cover any other Property; (vi) Liens to secure Debt Incurred to
126
refinance, in whole or in part, Debt secured by any Lien referred to in the
foregoing clauses (i), (iv) and (v) or this clause (vi) so long as such Lien
does not extend to any other Property (other than improvements and accessions to
the original Property) and the principal amount of Debt so secured is not
increased except as otherwise permitted under clause (viii) of paragraph (b) of
Section 1010 or clause (ix) of Section 1011; (vii) Liens not otherwise permitted
by the foregoing clauses (i) through (vi) securing Debt in an aggregate amount
not to exceed 5% of the Company's Consolidated Tangible Assets; (viii) Liens
granted after the Issue Date pursuant to this Section 1014 to secure the
Securities; and (ix) Permitted Liens.
SECTION 1015. Limitation on Sale and Leaseback Transactions.
----------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into, assume, Guarantee or otherwise become
liable with respect to any Sale and Leaseback Transaction, unless (i) the
Company or such Restricted Subsidiary would be entitled to Incur (a) Debt in an
amount equal to the Attributable Value of the Sale and Leaseback Transaction
pursuant to Section 1010 and (b) a Lien pursuant to Section 1014, equal in
amount to the Attributable Value of the Sale and Leaseback Transaction, without
also securing the Securities, and (ii) the Sale and Leaseback Transaction is
treated as an Asset Disposition and all of the conditions of Section 1016
(including the provisions concerning the application of Net Available Proceeds)
are satisfied with respect to such Sale and Leaseback Transaction, treating all
of the consideration received in such Sale and Leaseback Transaction as Net
Available Proceeds for purposes of such Section 1015.
SECTION 1016. Limitation on Asset Dispositions.
---------------------------------
127
The Company shall not, and shall not permit any Restricted Subsidiary to,
make any Asset Disposition unless: (i) the Company or the Restricted Subsidiary,
as the case may be, receives consideration for such disposition at least equal
to the Fair Market Value for the Property sold or disposed of as determined by
the Board of Directors in good faith and evidenced by a Board Resolution filed
with the Trustee; and (ii) at least 75% of the consideration for such
disposition consists of cash or Cash Equivalents or the assumption of Debt of
the Company or any Restricted Subsidiary (other than Debt that is subordinated
to the Securities or any applicable Restricted Subsidiary Guarantee) and release
of the Company and all Restricted Subsidiaries from all liability on the Debt
assumed (or if less than 75%, the remainder of such consideration consists of
Telecommunications/IS Assets); provided, however, that, to the extent such
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disposition involves Special Assets, all or any portion of the consideration
may, at the Company's election, consist of Property other than cash, Cash
Equivalents, the assumption of Debt or Telecommunications/IS Assets.
The Net Available Proceeds (or any portion thereof) from Asset Dispositions
may be applied by the Company or a Restricted Subsidiary, to the extent the
Company or such Restricted Subsidiary elects (or is required by the terms of any
Debt): (1) to the permanent repayment or reduction of Debt then outstanding
under any Credit Facility, to the extent such Credit Facility would require such
application or prohibit payments pursuant to the Offer to Purchase described in
the following paragraph (other than Debt owed to the Company or any Affiliate of
the Company); or (2) to reinvest in Telecommunications/IS Assets (including by
means of an Investment in Telecommunications/IS Assets by a Restricted
Subsidiary with Net Available Proceeds received by the Company or another
Restricted Subsidiary).
Any Net Available Proceeds from an Asset Disposition not applied in
accordance with the preceding paragraph within 360 days (or, in the case of a
disposition of Special Assets identified in clause (a) of the definition thereof
in which the Net Available Proceeds exceed $500,000,000, 540 days) from the date
of the receipt of such Net Available Proceeds shall constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, the
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Company will be required to make an Offer to Purchase with such Excess Proceeds
on a pro rata basis according to principal amount (or, in the case of Debt
issued at a discount, the then-Accreted Value) for (x) Outstanding Securities at
a price in cash equal to 100% of the principal amount of the Securities on the
purchase date plus accrued and unpaid interest (if any) thereon (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date) and (y) any other Debt of the Company or
any Guarantor that is pari passu with the Securities, or any Debt of a
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Restricted Subsidiary that is not a Guarantor, at a price no greater than 100%
of the principal amount thereof plus accrued and unpaid interest (if any) to the
purchase date (or 100% of the then-Accreted Value plus accrued and unpaid
interest (if any) to the purchase date in the case of original issue discount
Debt), to the extent, in the case of this clause (y), required under the terms
thereof (other than Debt owed to the Company or any Affiliate of the Company).
To the extent there are any remaining Excess Proceeds following the completion
of the Offer to Purchase, the Company shall apply such Excess Proceeds to the
repayment of other Debt of the Company or any Restricted Subsidiary, to the
extent permitted or required under the terms thereof. Any other remaining Excess
Proceeds may be applied to any use as determined by the Company which is not
otherwise prohibited by this Indenture, and the amount of Excess Proceeds shall
be reset to zero.
The Company and the Trustee shall perform their respective obligations for
the Offer to Purchase as specified in the Offer. Prior to the Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Offer, (ii) irrevocably deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted (provided that such deposit may be
made no later than 11:00 A.M. New York City time on the Purchase Date if the
Company elects) and (iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of
129
Securities so accepted payment in an amount equal to the Purchase Price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security or Securities equal in principal amount to any unpurchased portion of
the Security surrendered as requested by the Holder. Any Security not accepted
for payment shall be promptly mailed or delivered by the Company to the Holder
thereof. In the event that the aggregate Purchase Price is less than the amount
delivered by the Company to the Trustee or the Paying Agent, the Trustee or the
Paying Agent, as the case may be, shall deliver the excess to the Company
immediately after the Purchase Date.
Not later than the date upon which written notice of an Offer to Purchase
is delivered to the Trustee, the Company shall deliver to the Trustee an
Officers' Certificate as to (i) the amount of the Offer, (ii) the allocation of
the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made and (iii) the compliance of such allocation with the
provisions of this Section 1016.
In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 1017. Limitation on Issuance and Sales of Capital Stock of
----------------------------------------------------
Restricted Subsidiaries.
------------------------
130
The Company shall not, and shall not permit any Restricted Subsidiary to,
issue, transfer, convey, sell or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary or securities convertible or exchangeable into,
or options, warrants, rights or any other interest with respect to, Capital
Stock of a Restricted Subsidiary to any Person other than the Company or a
Restricted Subsidiary except (i) a sale of all of the Capital Stock of such
Restricted Subsidiary owned by the Company and any Restricted Subsidiary that
complies with the provisions of Section 1016 to the extent such provisions
apply, (ii) in a transaction that results in such Restricted Subsidiary becoming
a Joint Venture, provided (x) such transaction complies with the provisions of
--------
Section 1016 to the extent such provisions apply and (y) the remaining interest
of the Company or any other Restricted Subsidiary in such Joint Venture would
have been permitted as a new Restricted Payment or Permitted Investment under
the provisions of Section 1012, (iii) the issuance, transfer, conveyance, sale
or other disposition of shares of such Restricted Subsidiary so long as after
giving effect to such transaction such Restricted Subsidiary remains a
Restricted Subsidiary and such transaction complies with the provisions of
Section 1016 to the extent such provisions apply, (iv) the transfer, conveyance,
sale or other disposition of shares required by applicable law or regulation,
(v) if required, the issuance, transfer, conveyance, sale or other disposition
of directors' qualifying shares, (vi) Disqualified Stock issued in exchange for,
or upon conversion of, or the proceeds of the issuance of which are used to
refinance, shares of Disqualified Stock of such Restricted Subsidiary, provided
--------
that the amounts of the redemption obligations of such Disqualified Stock shall
not exceed the amounts of the redemption obligations of, and such Disqualified
Stock shall have redemption obligations no earlier than those required by, the
Disqualified Stock being exchanged, converted or refinanced, (vii) in a
transaction where the Company or a Restricted Subsidiary acquires at the same
time not less than its Proportionate Interest in such issuance of Capital Stock,
(viii) Capital Stock issued and outstanding on the Measurement Date, (ix)
Capital Stock of a Restricted Subsidiary issued and outstanding prior to the
time that such Person becomes a Restricted Subsidiary so long as such Capital
Stock was not issued in contemplation of such Person's becoming a Restricted
Subsidiary or otherwise being
131
acquired by the Company and (x) an issuance of Preferred Stock of a Restricted
Subsidiary (other than Preferred Stock convertible or exchangeable into Common
Stock of any Restricted Subsidiary) otherwise permitted by this Indenture. In
the event of (a) the consummation of a transaction referred to in any of the
foregoing clauses that results in a Guarantor no longer being a Restricted
Subsidiary and (b) the execution and delivery of a supplemental indenture
providing for such release in form satisfactory to the Trustee, any such
Guarantor shall be released from all its obligations under its Restricted
Subsidiary Guarantee.
SECTION 1018. Transactions with Affiliates.
-----------------------------
132
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, sell, lease, transfer, or otherwise
dispose of any of its Property to, or purchase any Property from, or enter into
any contract, agreement, understanding, loan, advance, Guarantee or transaction
(including the rendering of services) with or for the benefit of, any Affiliate
(each of the foregoing, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction or series of Affiliate Transactions is (i) in the best interest of
the Company or such Restricted Subsidiary and (ii) on terms that are no less
favorable to the Company or such Restricted Subsidiary than those that would
have been obtained in a comparable arm's-length transaction by the Company or
such Restricted Subsidiary with a Person that is not an Affiliate (or, in the
event that there are no comparable transactions involving Persons who are not
Affiliates of the Company or the relevant Restricted Subsidiary to apply for
comparative purposes, is otherwise on terms that, taken as a whole, the Company
has determined to be fair to the Company or the relevant Restricted Subsidiary)
and (b) the Company delivers to the Trustee (i) with respect to any Affiliate
Transaction or series of Affiliate Transactions involving aggregate payments in
excess of $10,000,000 but less than $15,000,000, a certificate of the chief
executive, operating or financial officer of the Company evidencing such
officer's determination that such Affiliate Transaction or series of Affiliate
Transactions complies with clause (a) above and (ii) with respect to any
Affiliate Transaction or series of Affiliate Transactions involving aggregate
payments equal to or in excess of $15,000,000, a Board Resolution certifying
that such Affiliate Transaction or series of Affiliate Transactions complies
with clause (a) above and that such Affiliate Transaction or series of Affiliate
Transactions has been approved by the Board of Directors, including a majority
of the disinterested members of the Board of Directors, provided that, in the
--------
event that there shall not be at least two disinterested members of the Board of
Directors with respect to the Affiliate Transaction, the Company shall, in
addition to such Board Resolution, file with the Trustee a written opinion from
an investment banking firm of national standing in the United States which, in
the good faith judgment of the Board of Directors, is independent with respect
to the Company and its Affiliates and qualified to perform such task, which
opinion
133
shall be to the effect that the consideration to be paid or received in
connection with such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, the following shall not be deemed Affiliate
Transactions: (i) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business and consistent
with industry practice; (ii) any agreement or arrangement with respect to the
compensation of a director or officer of the Company or any Restricted
Subsidiary approved by a majority of the disinterested members of the Board of
Directors and consistent with industry practice; (iii) transactions between or
among the Company and its Restricted Subsidiaries, provided that no more than 5%
--------
of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary
is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(iv) Restricted Payments and Permitted Investments permitted by Section 1012
(other than Investments in Affiliates that are not the Company or Restricted
Subsidiaries); (v) transactions pursuant to the terms of any agreement or
arrangement as in effect on the Measurement Date; and (vi) transactions with
respect to wireline or wireless transmission capacity, the lease or sharing or
other use of cable or fiber optic lines, equipment, rights-of-way or other
access rights, between the Company (or any Restricted Subsidiary) and any other
Person, provided that, in the case of this clause (vi), such transaction
--------
complies with clause (a) in the immediately preceding paragraph.
SECTION 1019. Limitation on 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 or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
134
(b) immediately after giving effect to such Designation, the Company
would be able to Incur $1.00 of Debt under paragraph (a) of Section 1010;
and
(c) the Company would not be prohibited under any provision of this
Indenture from making an Investment at the time of Designation (assuming
the effectiveness of such Designation) in an amount (the "Designation
Amount") equal to the portion (proportionate to the Company's equity
interest in such Restricted Subsidiary) of the Fair Market Value of the net
assets of 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 1012
for all purposes of this Indenture in the Designation Amount; provided, however,
-------- -------
that, upon a Revocation of any such Designation of a Subsidiary, the Company
shall be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary of an amount (if positive) equal to (i) the Company's "Investment" in
such Subsidiary at the time of such Revocation less (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such
Revocation. At the time of any Designation of any Subsidiary as an Unrestricted
Subsidiary, such Subsidiary shall not own any Capital Stock of the Company or
any Restricted Subsidiary. In addition, neither the Company nor any Restricted
Subsidiary shall at any time (x) provide credit support for, or a Guarantee of,
any Debt of any Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt); provided that the Company or a Restricted
--------
Subsidiary may pledge Capital Stock or Debt 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 Capital Stock or Debt, (y) be directly
or indirectly liable for any Debt of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Debt 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 Debt,
Lien or other obligation of any Unrestricted Subsidiary
135
(including any right to take enforcement action against such Unrestricted
Subsidiary), except in the case of clause (x) or (y) to the extent permitted
under Sections 1012 and 1018.
Unless Designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that such Subsidiary shall not be designated as a Restricted
-------- -------
Subsidiary and shall be automatically classified as an Unrestricted Subsidiary
if either of the requirements set forth in clauses (a) and (b) of the
immediately following paragraph will not be satisfied immediately following such
classification. Except as provided in the first sentence of this Section 1019,
no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary.
A Designation may be revoked (a "Revocation") by a Board Resolution
delivered to the Trustee, provided that the Company will not make any Revocation
--------
unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation; and
(b) all Liens and Debt of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if Incurred at such time, have
been permitted to be Incurred at such time for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board Resolutions
delivered to the Trustee (i) certifying compliance with the foregoing provisions
and (ii) giving the effective date of such Designation or Revocation, such
delivery to the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such Designation or Revocation is made (or, in
the case of a Designation or Revocation made during the last fiscal quarter of
the Company's fiscal year, within 90 days after the end of such fiscal year).
Upon Designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this Section 1019, such Restricted Subsidiary shall, by delivery
of a supplemental indenture providing for such release in form satisfactory to
the
136
Trustee, be released from any Restricted Subsidiary Guarantee previously made by
such Subsidiary.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
-------------------
The Securities will be subject to redemption at the option of the Company,
in whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice, on the terms and at the redemption prices
(expressed as percentages of principal amount) set forth in the second and third
paragraphs on the reverse of the form of Security, plus accrued and unpaid
interest thereon (if any) to the Redemption Date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
SECTION 1102. Applicability of Article.
------------------------
This Article shall govern any redemption of the Securities pursuant to
Section 1101.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. The Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 1104. Such notice
shall be accompanied by an Officers' Certificate and an Opinion of Counsel from
the Company to the effect that such redemption will comply with the conditions
herein.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
137
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or, if
the Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions of the principal of Securities;
provided, however, that no such partial redemption shall reduce the portion of
-------- -------
the principal amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities 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 Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
Each notice of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial
138
redemption, the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that on and after
the Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and unpaid and
accrued interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that, unless the Company defaults in making such
redemption payment or the Trustee or the Paying Agent is prohibited from making
such payment, interest thereon will cease to accrue on and after said date, and
(6) the place or places where such Securities are to be presented and
surrendered for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date (and if on any Redemption Date, before
11:00 A.M. New York City time, on such date), the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and unpaid and accrued interest
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) on, all the
Securities which are to be redeemed on that date.
139
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with unpaid and accrued interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest or the Trustee or the Paying Agent shall be prohibited from making such
payment) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with unpaid and accrued
interest, if any, to the Redemption Date; provided, however, that installments
-------- -------
of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Securities.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
140
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. 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 Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
------------------------
141
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Securities on the date the
conditions set forth in Section 1204 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 Outstanding
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1205 and the other Sections of this Indenture referred to in
clauses (A) and (B) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the Company's obligations
with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and
the Company's rights under Section 1101, (B) rights of Holders to receive
payment of principal of, premium, if any, and interest on such Securities (but
not the Purchase Price referred to under Section 1009 or 1016) and any rights of
the Holders with respect to such amounts, (C) the rights, obligations and
immunities of the Trustee under the Indenture and (D) this Article Twelve.
Subject to compliance with this Article Twelve, the Company may exercise its
option under this Section 1202 notwithstanding the prior exercise of its option
under Section 1203 with respect to the Securities. If the Company exercises its
option under this Section 1202, each Guarantor, if any, shall be released from
all its obligations under its Restricted Subsidiary Guarantee.
142
SECTION 1203. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1203, the Company shall be released from its obligations under any
covenant contained in Sections 801(3), (4) and (5), in Sections 803, 1005, 1006
and 1007 and Sections 1009 through 1019 and from the operation of Sections
501(6), (7), (8), (9) and (10) (but, in the case of Sections 501(9) and (10),
with respect only to Significant Subsidiaries), with respect to the Outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent, declaration or other Act of Holders (and the consequences of any
thereof) in connection with such provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities, 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 provision, whether directly or
indirectly, by reason of any reference elsewhere herein to any such provision or
by reason of any reference in any such provision to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(3), (4), (5), (6), (7), (8),
(9) or (10) (but, in the case of Section 501(9) or (10), with respect only to
Significant Subsidiaries) but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. If the Company
exercises its option under this Section 1203, each Guarantor, if any, shall be
released from all its obligations under its Restricted Subsidiary Guarantee.
143
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 1202
or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Article Twelve 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 Securities, at any
time prior to the Maturity of the Securities: (A) money in an amount, or
(B) Government Securities which through the payment of interest and
principal will provide, not later than one day before the due date of
payment in respect of the Securities, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the principal of
(and premium, if any, on) and interest on, the Outstanding Securities on
the Stated Maturity (or Redemption Date, if applicable) of such principal
(and premium, if any) or installment of interest; provided that the Trustee
--------
(or such other trustee) shall have been irrevocably instructed in writing
to apply such money or the proceeds of such Government Securities to said
payments with respect to the Securities. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1103, a notice
of its election to redeem all of the Outstanding Securities at a future
date in accordance with Article Eleven, which notice shall be irrevocable.
Such irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (9) and (10) of Section 501 are concerned with
respect to the Company, at any time during the period ending on
144
the 123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(4) In the case of an election under Section 1202, 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 of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(5) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 1202 or the covenant defeasance under Section 1203 (as the case may
be) have been complied with.
145
(7) The Company shall have delivered to the Trustee an Opinion
of Counsel acceptable to the Trustee to the effect that such defeasance
will not result in the trust relating thereto or the Trustee being subject
to regulation under the Investment Company Act of 1940.
SECTION 1205. Deposited Money and Government Securities to Be Held in
-------------------------------------------------------
Trust; Other Miscellaneous Provisions.
--------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities 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 or to the extent the
Company acts as its own Paying Agent.
The Company shall pay and indemnify the Trustee and (if applicable) its
officers, directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the Government Securities deposited pursuant to
Section 1204 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Securities held by it as provided in Section
1204 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant
146
defeasance, as applicable, in accordance with this Article Twelve.
SECTION 1206. Reinstatement.
--------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 401 or 1205 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Guarantor's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401, 1202 or 1203, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance therewith; provided, however, that if the Company or any
-------- -------
Guarantor makes any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company or such
Guarantor shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
147
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXX 0 COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President, General
Counsel and Secretary
Attest:
/s/ Xxxx X. Xxxxxxxx
______________________________
Name: Xxxx X. Xxxxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Van X. Xxxxx
_________________________________
Name: Van X. Xxxxx
Title: Assistant Vice President
Attest:
/s/ Xxxx X. Xxxxx
______________________________
Name: Xxxx X. Xxxxx
Title: Vice President
EXHIBIT A
Form of Face of Security
------------------------
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY 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 THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY 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 THE INDENTURE.
[If a Global Security, then insert:] 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.
[Private Placement Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
A-2
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), PROVIDED THAT, IF SUCH
TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE (AS
DEFINED BELOW) PRIOR TO THE DATE THAT IS 40 DAYS FOLLOWING THE ISSUE DATE, A
CERTIFICATE THE FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT
IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND
A CERTIFICATE THE FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE
IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT
CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY
PURSUANT TO THIS CLAUSE (4) PRIOR TO THE DATE THAT IS 40 DAYS FOLLOWING THE
ISSUE DATE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES
IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
A-3
SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT.
[If a Physical Security, then insert:] IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
A-4
LEVEL 3 COMMUNICATIONS, INC.
11 1/4% Senior Note Due 2010
CUSIP No.
No. [up to] $
Level 3 Communications, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of [if a Global
Security, then insert: up to] _________ Dollars [if a Global Security, then
insert: (the outstanding principal amount of which shall be reflected in the
attached Schedule of Increases or Decreases in Global Security and the records
of the Trustee which, taken together with the outstanding principal amounts of
all other Outstanding Securities, shall not exceed $250,000,000 in the aggregate
at any time)] on March 15, 2010, at the office or agency of the Company referred
to below, and to pay interest thereon, in cash in arrears semiannually on March
15 and September 15 in each year, commencing on September 15, 2000, accruing
from February 29, 2000 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 11 1/4% per annum,
until the principal hereof is paid or duly provided for. The Company shall pay
interest on overdue principal at the rate borne by the Securities, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
[Delete this paragraph if an Exchange Security (other than a Private Exchange
Security).] The Holder of this Security is entitled to the benefits of a U.S.
Registration Agreement, dated as of February 24, 2000, between the Company and
the Purchasers named therein (the "Registration Agreement"). Capitalized terms
used in this paragraph but not defined herein have the meanings assigned to them
in the Registration Agreement. In the event that (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission on or prior to the 90th day following the date of the original
issuance of the Securities, (ii) neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been declared effective on or
prior to the 150th day
A-5
following the date of the original issuance of the Securities, (iii) neither the
Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective on or prior to the 180th day following the
date of the original issuance of the Securities, or (iv) after the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of the
Securities at any time that the Company is obligated to maintain the
effectiveness thereof pursuant to the Registration Agreement (each such event
referred to in clauses (i) through (iv) above being referred to herein as a
"Registration Default"), interest (the "Special Interest") shall accrue (in
addition to stated interest on the Securities) from and including the date on
which the first such Registration Default shall occur to but excluding the date
on which all Registration Defaults have been cured, at a rate per annum equal to
0.50% of the principal amount of the Securities; provided, however, that such
-------- -------
rate per annum shall increase by 0.25% per annum from and including the 91st day
after the first such Registration Default (and each successive 91st day
thereafter) unless and until all Registration Defaults have been cured; provided
--------
further, however, that in no event shall the Special Interest accrue at a rate
------- -------
in excess of 1.00% per annum. Accrued Special Interest, if any, shall be paid in
cash in arrears semiannually on March 15 and September 15 in each year; and the
amount of accrued Special Interest shall be determined on the basis of the
number of days actually elapsed. Any accrued and unpaid interest (including
Special Interest) on this Security upon the issuance of an Exchange Security in
exchange for this Security shall cease to be payable to the Holder hereof but
such accrued and unpaid interest (including Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof on the related Regular Record Date.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
A-6
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest,
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities, may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in said Indenture. Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in The
City 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 Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-7
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:________________ XXXXX 0 COMMUNICATIONS, INC.
By:
___________________________
Authorized Signatory
Attest:
____________________
A-8
Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of securities of the
Company designated as its 11 1/4% Senior Notes Due 2010 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $250,000,000, which may be issued
under an indenture (herein called the "Indenture") dated as of February 29, 2000
between the Company and The Bank of New York, 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 Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption at the option of the Company,
in whole or in part, at any time or from time to time on or after March 15,
2005, upon not less than 30 nor more than 60 days' prior notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon (if any) to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve months beginning March 15 of the years indicated below:
Year Redemption Price
---- ----------------
2005.....................................................................................105.625%
2006.....................................................................................103.750%
2007.....................................................................................101.875%
2008 and thereafter......................................................................100.000%
In addition, at any time or from time to time prior to March 15, 2003,
the Company may redeem up to 35% of the original aggregate principal amount of
the Securities at a
A-9
redemption price equal to 111.25% of the principal amount of the Securities so
redeemed, plus accrued and unpaid interest thereon (if any) to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of one or more private placements to Persons other than Affiliates of
the Company or underwritten public offerings of Common Stock of the Company
resulting in gross proceeds of at least $100,000,000 in the aggregate; provided
--------
that at least 65% of the original aggregate principal amount of the Securities
would remain outstanding immediately after giving effect to such redemption. Any
such redemption shall be made within 90 days of such private placement or public
offering upon not less than 30 nor more than 60 days' prior notice.
Upon the occurrence of a Change of Control Triggering Event, the Holder
of this Security may require the Company, subject to certain limitations
provided in the Indenture, to repurchase this Security at a purchase price in
cash in an amount equal to 101% of the principal amount thereof, plus accrued
and unpaid interest (if any) to the purchase date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
To guarantee the due and punctual payment of the principal, premium (if
any) and interest on the Securities and all other amounts payable by the Company
under the
A-10
Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Guarantors, if any, will unconditionally
guarantee such obligations on a senior unsecured basis pursuant to the terms of
the Indenture.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and Defaults and Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
The Indenture permits, with certain exceptions as therein provided, 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 a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Without the consent of any
Holder of Securities, the Company and the Trustee may amend or modify the
Indenture for certain purposes specified therein, including the release of
Guarantors, if any, from Restricted Subsidiary Guarantees as provided by the
terms of the Indenture. Any such consent or waiver by or on behalf of the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
A-11
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees. The Securities 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 Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or other similar governmental charge
payable in connection therewith.
Prior to the time of due presentment of this Security 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 Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS
A-12
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-13
Form of Trustee's Certificate of Authentication
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: _______________
This is one of the Securities referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
____________________________
Authorized Signatory
A-14
Assignment Form
---------------
If you, the holder, want to assign this Security, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Security to______________________________
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)
___________________________________
(Print or type assignee's name, address and zip code)
___________________________________
___________________________________
___________________________________
and irrevocably appoint__________________________
of _______________________________
_______________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
A-15
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the date that is two years (or such
shorter period as may be prescribed by Rule 144(k) under the Securities Act
or any successor provision thereunder) after the later of the date of
original issuance of such Securities (or any Predecessor Security) or three
months after the last date, if any, on which such Securities (or any
Predecessor Security) were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being
transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [_] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933,
provided that, if such transfer is being effected by certain
transferors specified in the Indenture prior to the date
that is 40 days following the Issue Date, a certificate
which may be obtained from the Company or the Trustee is
delivered by the transferee to the Company and the Trustee;
or
A-16
(5) [_] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form
of which letter can be obtained from the Trustee or the
Company), provided that certain transferors specified in the
Indenture may not transfer this Security pursuant to this
clause (5) prior to the date that is 40 days following the
Issue Date; or
(6) [_] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered holder thereof; provided, however, that if box
-------- -------
(4), (5) or (6) is checked, the Trustee may require, prior to registering
any such transfer of the Securities, such legal opinions, certifications
and other information as the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933.
Dated: ________________ Your signature: ___________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:
____________________________________________
NOTICE: To be executed by an executive
officer
Signature Guarantee: ____________________________________________________
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED:
A-17
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933 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 Security purchased by the Company pursuant to
Section 1009 or 1016 of the Indenture, check the box: [_]
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1009 or 1016 of the Indenture, state the amount:
$______________.
Dated: ___________________ Your Signature: ___________________________
(Sign exactly as your name appears on the
other side of this Security)
A-18
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The
following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Transfer in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Security Registrar
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of Level 3 Communications, Inc.
(or its successor), a Delaware corporation (the "Company"),
XXXXX 0 XXXXXXXXXXXXXX, XXX., on behalf of itself and the
Guarantors (the "Existing Guarantors"), if any, under the
Indenture referred to below, and THE BANK OF NEW YORK, a
New York banking corporation, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to
the Trustee an Indenture dated as of February 29, 2000 (the "Indenture";
capitalized terms used but not defined herein having the meanings assigned
thereto in the Indenture), providing for the issuance of an aggregate
principal amount of up to $250,000,000 of 11 1/4% Senior Notes Due 2010
(the "Securities");
WHEREAS the Indenture permits the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations
under the Securities pursuant to a Guarantee on the terms and conditions
set forth herein;
WHEREAS the Guarantee contained in this Supplemental Indenture
shall constitute a "Restricted Subsidiary Guarantee", and the New Guarantor
shall constitute a "Guarantor", for all purposes of the Indenture; and
WHEREAS pursuant to Section 901 of the Indenture, the Trustee
and the Company are authorized to execute and deliver this Supplemental
Indenture;
B-2
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby
acknowledged, the New Guarantor, the Company, the Existing Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit
of the holders of the Securities as follows:
1. Guaranties. The New Guarantor hereby unconditionally
-----------
guarantees, jointly and severally, to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of principal
of (and premium, if any) and interest on the Securities when due, whether
at Stated Maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under the Indenture and the
Securities and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company under the Indenture
and the Securities (all the foregoing being hereinafter collectively called
the "Obligations"). The New Guarantor further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from the New Guarantor and that the New Guarantor will remain bound
under this Supplemental Indenture notwithstanding any extension or renewal
of any Obligation.
The New Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations and also waives
notice of protest for nonpayment. The New Guarantor waives notice of any
default under the Securities or the Obligations. The obligations of the New
Guarantor hereunder shall not be affected by (a) the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under the Indenture, the
Securities or any other agreement or otherwise; (b) any extension or
renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of the Indenture, the
Securities or any other agreement; (d) the release of any security held by
any Holder or the Trustee for the Obligations or any of them; (e) the
failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations; or (f) any change in the
ownership of the New Guarantor.
B-3
The New Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that
any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
Except as expressly set forth in Sections 803, 1017, 1019,
1202 and 1203 of the Indenture, the obligations of the New Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the New Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under the Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any
other act or thing or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the risk of the New
Guarantor or would otherwise operate as a discharge of the New Guarantor as
a matter of law or equity.
The New Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of principal of or (premium, if any)
interest on any Obligation is rescinded or must otherwise be restored by
any Holder or the Trustee upon the bankruptcy or reorganization of the
Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
the New Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of (or premium, if any) or interest on any Obligation when
and as the same shall become due, whether at Stated Maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any
other
B-4
Obligation, the New Guarantor hereby promises to and will, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid amount of such Obligations, (ii) accrued and unpaid interest
on such Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations of the Company to the Holders and the
Trustee.
The New Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Obligations guaranteed hereby until
payment in full in cash of all Obligations. The New Guarantor further
agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article Five of the Indenture for
the purposes of the New Guarantor's Guarantee herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article Five
of the Indenture, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the New Guarantor for the purposes of
this Section.
The New Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section 1.
2. Contribution. Each of the Company and the New Guarantor (a
-------------
"Contributing Party") agrees that, in the event a payment shall be made by
any other Guarantor under any Restricted Subsidiary Guarantee (the
"Claiming Guarantor"), the Contributing Party shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment multiplied by a
fraction, the numerator of which shall be the net worth of the Contributing
Party (which, in the case of the Company, shall be measured on the Issue
Date, and in the case of the New Guarantor, on the date hereof) and the
denominator of which shall be the aggregate net worth of the Company on the
Issue Date and the Guarantors on respective dates of the Supplemental
Indentures executed and delivered by such Guarantors.
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3. Successors and Assigns. This Supplemental Indenture shall
-----------------------
be binding upon the New Guarantor and its successors and assigns and shall
enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party
in the Indenture and in the Securities shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.
4. No Waiver. Neither a failure nor a delay on the part of
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either the Trustee or the Holders in exercising any right, power or
privilege under this Supplemental Indenture, the Indenture or the
Securities shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any right, power
or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein and therein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have
under this Supplemental Indenture, the Indenture or the Securities at law,
in equity, by statute or otherwise.
5. Modification. No modification, amendment or waiver of any
-------------
provision of this Supplemental Indenture, nor the consent to any departure
by the New Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on the New Guarantor in any
case shall entitle the New Guarantor to any other or further notice or
demand in the same, similar or other circumstances.
6. Opinion of Counsel. Concurrently with the execution and
-------------------
delivery of this Supplemental Indenture, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that this Supplemental
Indenture has been duly authorized, executed and delivered by each of the
New Guarantor and the Company and that, subject to the application of
bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and
other similar laws relating to creditors' rights generally and to the
principles of equity, whether considered in a proceeding at law or in
equity, the Guarantee of the New Guarantor is a legal, valid and binding
obligation of the New Guarantor, enforceable against the New Guarantor in
accordance with its terms.
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7. Ratification of Indenture; Supplemental Indentures Part of
----------------------------------------------------------
Indenture. Except as expressly amended hereby, the Indenture is in all
----------
respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every
holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby.
8. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
--------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of
-------------
this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
-------------------
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above
written.
[NEW GUARANTOR],
by
_________________________________
Name:
Title:
LEVEL 3 COMMUNICATIONS, INC., on behalf
of itself and the Existing Guarantors,
if any,
by
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_________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
_________________________________
Name:
Title:
