Exhibit 4.1
EXECUTION COPY
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GLOBENET COMMUNICATIONS GROUP LIMITED
TO
BANKERS TRUST COMPANY,
Trustee
____________________
Indenture
Dated as of July 14, 1999
_____________________
$300,000,000
13% Senior Notes Due 2007
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GLOBENET COMMUNICATIONS GROUP LIMITED
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 14, 1999
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) ......................................... 607
(a)(2) ......................................... 607
(b) ......................................... 608
(S) 312(c) ......................................... 701
(S) 314(a) ......................................... 703
(a)(4) ......................................... 1007(a)
(c)(1) ......................................... 102
(c)(2) ......................................... 102
(e) ......................................... 102
(S) 315(b) ......................................... 601
(S) 316(a)(last .........................................
sentence) ......................................... 101 ("Outstanding")
(a)(1)(A) ......................................... 502, 512
(a)(1)(B) ......................................... 513
(b) ......................................... 508
(c) ......................................... 104(d)
(S) 317(a)(1) ......................................... 503
(a)(2) ......................................... 504
(b) ......................................... 1003
(S) 318(a) ......................................... 111
TABLE OF CONTENTS
Page
PARTIES................................................................................................... 1
RECITALS OF THE COMPANY................................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................................................................ 1
Acquired Debt........................................................................................ 2
Act.................................................................................................. 2
Additional Amount.................................................................................... 2
Additional Securities................................................................................ 2
Affiliate............................................................................................ 2
Agent Member......................................................................................... 3
Alcatel.............................................................................................. 3
Alcatel Guaranty..................................................................................... 3
Applicable Percentage................................................................................ 3
Applicable Procedures................................................................................ 3
Asset Sale........................................................................................... 3
Asset Sale Offer..................................................................................... 4
Attributable Debt.................................................................................... 4
Bankruptcy Laws...................................................................................... 4
Bankruptcy Order..................................................................................... 4
Beneficial Owner..................................................................................... 5
Board of Directors................................................................................... 5
Board Resolution..................................................................................... 5
Business Day......................................................................................... 5
Capital Lease Obligation............................................................................. 5
Capital Stock........................................................................................ 5
Cash Equivalents..................................................................................... 5
Change of Control.................................................................................... 6
Change of Control Offer.............................................................................. 7
Commission........................................................................................... 7
Company.............................................................................................. 7
Company Request or Company Order..................................................................... 7
______________________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Consolidated Capital Ratio........................................................................... 7
Consolidated Cash Flow............................................................................... 7
Consolidated Leverage Ratio.......................................................................... 8
Consolidated Net Income.............................................................................. 9
Consolidated Net Worth............................................................................... 9
Continuing Director.................................................................................. 10
Corporate Trust Office............................................................................... 10
Corporation.......................................................................................... 10
Custodian............................................................................................ 11
Default.............................................................................................. 11
Defaulted Interest................................................................................... 11
Depositary or DTC.................................................................................... 11
disinterested member................................................................................. 11
Disqualified Stock................................................................................... 11
Equity Interests..................................................................................... 11
Equity Offering...................................................................................... 11
Event of Default..................................................................................... 11
Exchange Act......................................................................................... 11
Exchange Offer Registration Statement................................................................ 12
Existing Indebtedness................................................................................ 12
Fair Market Value.................................................................................... 12
Fiber Optic Assets................................................................................... 12
Fiber Optic Joint Venture............................................................................ 12
GAAP................................................................................................. 12
Global Securities and Global Security................................................................ 12
Government Securities................................................................................ 12
guarantee............................................................................................ 13
Guarantee............................................................................................ 13
Guarantor............................................................................................ 13
Hedging Obligations.................................................................................. 13
Holder............................................................................................... 13
Indebtedness......................................................................................... 13
Indenture............................................................................................ 14
Interest Payment Date................................................................................ 14
Investments.......................................................................................... 14
Issue Date........................................................................................... 15
Lien................................................................................................. 15
Material Subsidiary.................................................................................. 15
Maturity............................................................................................. 15
Net Income........................................................................................... 15
Net Proceeds......................................................................................... 15
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New Credit Facility.................................................................................. 16
Non-Recourse Debt.................................................................................... 16
Obligations.......................................................................................... 16
Officers' Certificate................................................................................ 16
Opinion of Counsel................................................................................... 16
Outstanding.......................................................................................... 16
Paying Agent......................................................................................... 17
Permitted Business................................................................................... 17
Permitted Holders.................................................................................... 17
Permitted Indebtedness............................................................................... 18
Permitted Investments................................................................................ 20
Permitted Liens...................................................................................... 22
Permitted Refinancing Indebtedness................................................................... 25
Person............................................................................................... 26
Predecessor Security................................................................................. 26
Preferred Stock...................................................................................... 26
Private Equity Financing............................................................................. 26
Property............................................................................................. 26
Purchase Money Indebtedness.......................................................................... 26
Redemption Date...................................................................................... 26
Redemption Price..................................................................................... 27
Registration Rights Agreement........................................................................ 27
Regular Record Date.................................................................................. 27
Regulation S......................................................................................... 27
Responsible Officer.................................................................................. 27
Restricted Global Securities and Restricted Global Security.......................................... 27
Restricted Investment................................................................................ 27
Restricted Payment................................................................................... 27
Restricted Subsidiary................................................................................ 28
Securities Act....................................................................................... 28
Security and Securities.............................................................................. 28
Security Register and Securities Registrar........................................................... 28
Shelf Registration Statement......................................................................... 28
Significant Subsidiary............................................................................... 28
Special Record Date.................................................................................. 28
Stated Maturity...................................................................................... 28
Subsidiary........................................................................................... 28
Tax.................................................................................................. 29
Taxing Authority..................................................................................... 29
Trust Indenture Act or TIA........................................................................... 29
Trustee.............................................................................................. 29
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U.S. Dollars or United States dollars................................................................ 29
Unrestricted Global Securities and Unrestricted Global Security...................................... 29
Unrestricted Subsidiary.............................................................................. 29
Vendor Financing Indebtedness........................................................................ 29
Vice President....................................................................................... 30
Voting Stock......................................................................................... 30
Weighted Average Life to Maturity.................................................................... 30
Wholly Owned Restricted Subsidiary................................................................... 30
Wholly Owned Subsidiary.............................................................................. 30
SECTION 102. Compliance Certificates and Opinions................................................... 30
SECTION 103. Form of Documents Delivered to Trustee................................................. 31
SECTION 104. Acts of Holders........................................................................ 32
SECTION 105. Notices, etc., to Trustee and Company.................................................. 33
SECTION 106. Notice to Holders; Waiver.............................................................. 33
SECTION 107. Effect of Headings and Table of Contents............................................... 34
SECTION 108. Successors and Assigns................................................................. 34
SECTION 109. Separability Clause.................................................................... 34
SECTION 110. Benefits of Indenture.................................................................. 34
SECTION 111. Governing Law.......................................................................... 34
SECTION 112. Conflict with Trust Indenture Act...................................................... 34
SECTION 113. Legal Holidays......................................................................... 35
SECTION 114. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities............................................................. 35
SECTION 115. Conversion of Currency................................................................. 36
SECTION 116. Currency Equivalent.................................................................... 37
SECTION 117. No Recourse Against Others; Waiver and Release......................................... 37
SECTION 118. Reliance on Financial Data............................................................. 38
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally........................................................................ 38
SECTION 202. Restrictive Legend..................................................................... 39
SECTION 203. Form of Face of Security............................................................... 40
SECTION 204. Form of Reverse of Security............................................................ 43
SECTION 205. Form of Trustee's Certificate of Authentication........................................ 47
ARTICLE THREE
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THE SECURITIES
SECTION 301. Title and Terms........................................................................ 47
SECTION 302. Denominations.......................................................................... 48
SECTION 303. Execution, Authentication, Delivery and Dating......................................... 48
SECTION 304. Temporary Securities................................................................... 50
SECTION 305. Registration, Registration of Transfer and Exchange.................................... 50
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................................... 52
SECTION 307. Payment of Interest; Interest Rights Preserved......................................... 52
SECTION 308. Persons Deemed Owners.................................................................. 54
SECTION 309. Cancellation........................................................................... 54
SECTION 310. Computation of Interest................................................................ 54
SECTION 311. CUSIP Number........................................................................... 54
SECTION 312. Book-Entry Provisions for Global Securities............................................ 55
SECTION 313. Special Transfer Provisions............................................................ 56
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................................ 58
SECTION 402. Application of Trust Money............................................................. 60
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................................................... 60
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................................... 62
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........................ 64
SECTION 504. Trustee May File Proofs of Claim....................................................... 64
SECTION 505. Trustee May Enforce Claims Without Possession of Securities............................ 65
SECTION 506. Application of Money Collected......................................................... 65
SECTION 507. Limitation on Suits.................................................................... 66
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................................. 66
SECTION 509. Restoration of Rights and Remedies..................................................... 67
SECTION 510. Rights and Remedies Cumulative......................................................... 67
SECTION 511. Delay or Omission Not Waiver........................................................... 67
SECTION 512. Control by Holders..................................................................... 67
SECTION 513. Waiver of Past Defaults................................................................ 68
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SECTION 514. Undertaking for Costs.................................................................. 68
SECTION 515. Waiver of Stay or Extension Laws....................................................... 69
ARTICLE SIX
THE TRUSTEE
SECTION 601. Defaults............................................................................... 69
SECTION 602. Certain Rights of Trustee.............................................................. 69
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities......................... 71
SECTION 604. May Hold Securities.................................................................... 71
SECTION 605. Money Held in Trust.................................................................... 71
SECTION 606. Compensation and Reimbursement......................................................... 71
SECTION 607. Corporate Trustee Required; Eligibility................................................ 72
SECTION 608. Resignation and Removal; Appointment of Successor...................................... 72
SECTION 609. Acceptance of Appointment by Successor................................................. 74
SECTION 610. Merger, Conversion, Consolidation or Succession to Business............................ 74
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........................................... 75
SECTION 702. Reports by Trustee..................................................................... 75
SECTION 703. Reports by Company..................................................................... 75
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms................................... 75
SECTION 802. Successor Substituted.................................................................. 76
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..................................... 77
SECTION 902. Amendment, Supplement and Waiver with Consent of Holders............................... 77
SECTION 903. Execution of Supplemental Indentures................................................... 79
SECTION 904. Effect of Supplemental Indentures...................................................... 79
SECTION 905. Conformity with Trust Indenture Act.................................................... 79
SECTION 906. Reference in Securities to Supplemental Indentures..................................... 79
SECTION 907. Notice of Supplemental Indentures...................................................... 80
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest................................... 80
SECTION 1002. Maintenance of Office or Agency....................................................... 80
SECTION 1003. Money for Security Payments to Be Held in Trust....................................... 81
SECTION 1004. Corporate Existence................................................................... 82
SECTION 1005. Payment of Taxes and Other Claims..................................................... 82
SECTION 1006. Maintenance of Properties............................................................. 82
SECTION 1007. Statement by Officers As to Default................................................... 83
SECTION 1008. Provision of Financial Statements..................................................... 83
SECTION 1009. Purchase of Securities upon Change of Control......................................... 84
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance
of Preferred Stock............................................................... 85
SECTION 1011. Limitation on Restricted Payments..................................................... 86
SECTION 1012. Limitation on Certain Asset Sales..................................................... 89
SECTION 1013. Restrictions on Liens................................................................. 90
SECTION 1014. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.......................................................... 91
SECTION 1015. Transactions with Affiliates.......................................................... 93
SECTION 1016. Limitation on Sale and Leaseback Transactions......................................... 94
SECTION 1017. Limitation on Issuances and Sales of Equity Interests in
Restricted Subsidiaries.......................................................... 95
SECTION 1018. Limitation on Future Guarantees....................................................... 96
SECTION 1019. Limitation on Business Activities..................................................... 97
SECTION 1020. Limitation on Unrestricted Subsidiaries............................................... 97
SECTION 1021. Limitation on Payments for Consent.................................................... 97
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SECTION 1022. Payment of Additional Amounts......................................................... 97
SECTION 1023. Waiver of Certain Covenants........................................................... 100
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption................................................................... 100
SECTION 1102. Applicability of Article.............................................................. 101
SECTION 1103. Election to Redeem; Notice to Trustee................................................. 101
SECTION 1104. Selection by Trustee of Securities to Be Redeemed..................................... 101
SECTION 1105. Notice of Redemption.................................................................. 101
SECTION 1106. Deposit of Redemption Price........................................................... 102
SECTION 1107. Securities Payable on Redemption Date................................................. 102
SECTION 1108. Securities Redeemed in Part........................................................... 103
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal Defeasance or
Covenant Defeasance.............................................................. 103
SECTION 1202. Legal Defeasance...................................................................... 103
SECTION 1203. Covenant Defeasance................................................................... 104
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance................................. 104
SECTION 1205. Deposited Money and U.S. Government Securities to Be
Held in Trust; Other Miscellaneous Provisions.................................... 106
SECTION 1206. Reinstatement......................................................................... 107
TESTIMONIUM............................................................................................... 108
SIGNATURES AND SEALS...................................................................................... 108
EXHIBITS
A-1 - Form of Certificate for Exchange or Registration of Transfer From
Restricted Global Additional Security to Unrestricted Global
Additional Security
A-2 - Form of Certificate for Transfer or Exchange After Two Year
INDENTURE, dated as of July 14, 1999 between GlobeNet Communications
Group Limited, a Bermuda company (herein called the "Company") and Bankers Trust
Company, a New York banking corporation, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 13% Senior
Notes Due 2007 (herein called the "Initial Securities") and 13% Series B Senior
Notes Due 2007 (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.
Upon the effectiveness of the Exchange Offer Registration Statement
(as defined herein), if any, or the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture will be subject to the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
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:
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, 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;
1
(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, and the terms "cash transaction" and "self-
liquidating paper", as used in TA Section 311, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act; and
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Ten, are defined in that
Article.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged or amalgamated with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging or
amalgamating with or into, or becoming a Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amount" shall have the meaning set forth in Section 1022.
"Additional Securities" means Securities that are issued under a
supplemental indenture after the date that the Securities are first issued by
the Company and authenticated by a Trustee under this Indenture, which will rank
pari passu with the Securities initially issued in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
such Additional Securities or except for the first payment of interest following
the issue date of such Additional Securities).
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"Agent Member" means any member of, or participants in, the
Depositary.
2
"Alcatel" means Alcatel, a French societe anonyme, or any Affiliate
thereof, and their respective successors and assigns.
"Alcatel Guaranty" means the guarantee to be given by Alcatel in
favor of the lenders under the New Credit Facility, together with any related
reimbursement agreement between or among the Company or any Restricted
Subsidiary and Alcatel, as such guarantee and reimbursement agreement may be
amended, amended and restated, supplemented, modified, renewed, extended,
refunded, restructured, replaced or refinanced, and in effect from time to time.
"Applicable Percentage" means 0% for each fiscal quarter commencing
prior to January 1, 2002 and 50% for each fiscal quarter thereafter.
"Applicable Procedures" means applicable procedures of the
Depositary.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights, other than any sale, lease, conveyance or other disposition of
capacity (but not including a disposition of a dark fiber involving
transfer of title thereto, other than backhaul) on any cable system owned,
controlled or operated by the Company or any of its Restricted Subsidiaries
or of telecommunications capacity or transmission rights acquired by the
Company or any Restricted Subsidiary for use in a Permitted Business;
provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Section 1009 and/or
Article Eight and not by Section 1012; and
(2) the issuance of Equity Interests by any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries;
Notwithstanding the preceding, the following items shall be deemed not
to be Asset Sales:
(1) any single transaction or series of related transactions that:
(a) involves assets having a Fair Market Value of less than $1.0 million;
or (b) results in net proceeds to the Company and its Restricted
Subsidiaries of less than $1.0 million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries or between Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary to the
Company or to a Wholly Owned Restricted Subsidiary;
(4) a Permitted Investment or a Restricted Payment that is permitted
by Section 1011;
3
(5) the sale of Fiber Optic Assets for which the Company or any
Restricted Subsidiary receives consideration substantially all of which is
Fiber Optic Assets and such consideration has an aggregate Fair Market
Value at least equal to the Fair Market Value of the Fiber Optic Assets so
sold;
(6) the sale, conveyance or other disposition of dark fiber on any
cable system utilized by the Company or any of its Restricted Subsidiaries
for backhaul capacity;
(7) the licensing of intellectual property of the Company or any of
its Restricted Subsidiaries in the ordinary course of business; and
(8) a disposition of obsolete or worn out equipment or equipment that
is no longer useful in the conduct of a Permitted Business and that is
disposed of in the ordinary course of business.
"Asset Sale Offer" has the meaning set forth in Section 1012.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Laws" means the bankruptcy laws of Bermuda and of the
United States, any state or territory thereof or the District of Columbia, and
the law of any other jurisdiction relating to bankruptcy, insolvency, winding
up, liquidation, moratorium, reorganization or relief of debtors.
"Bankruptcy Order" means any court order made in a proceeding pursuant
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding up, dissolution
or reorganization, or appointing a Custodian of a debtor or of all or any
substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or composition of indebtedness or other relief of a
debtor.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-
3 and Rule 13d-5 under the Exchange Act.
"Board of Directors" means, with respect to any Person, the board of
directors or other governing body of such Person, except that if such Person is
owned or managed by a single entity, it means the board of directors or other
governing body of such entity, or, in either case, any committee thereof duly
authorized to act on behalf of such board or governing body.
4
"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.
"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" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means any of the following:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than six months from the
date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition and overnight
bank deposits, in each case with any U.S. commercial bank having capital
and surplus in excess of $500 million and a Xxxxxxxx Bank Watch Rating of
"B" or better;
(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
5
(5) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Service, a
division of The XxXxxx-Xxxx Companies, Inc., or their successors, and in
each case maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1)-(5) of this
definition.
"Change of Control" means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition (other than
by way of merger, amalgamation or consolidation and other than transmission
capacity in the ordinary course of business), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole to any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act and the rules
promulgated thereunder) other than a Restricted Subsidiary, or one or more
Permitted Holders, or a person or group of which no other person or group
other than one or more Permitted Holders is the Beneficial Owner, directly
or indirectly, of more than 50% of the Voting Stock of such transferee
Person, measured by voting power rather than number of shares, upon
consummation of such transaction or transactions;
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger, amalgamation or consolidation) the result of which
is that any "person" or "group" (as defined above), other than one or more
Permitted Holders, becomes the Beneficial Owner, directly or indirectly, of
more than 50% of the Voting Stock of the Company, measured by voting power
rather than number of shares;
(4) during any period of two consecutive years beginning on or after
the Issue Date, Continuing Directors cease for any reason to constitute a
majority of the members of the Board of Directors of the Company; or
(5) the Company consolidates with, or merges or amalgamates with or
into, any Person, or any Person consolidates with, or merges or amalgamates
with or into, the Company, in any such event pursuant to a transaction in
which any of the outstanding Voting Stock of the Company is converted into
or exchanged for cash, securities or other property, other than any such
transaction where no "person" or "group" (as defined above), other than one
or more Permitted Holders, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock, measured by voting power
rather than number of shares, of such surviving, continuing or transferee
Person, in each case immediately after giving effect to such issuance.
"Change of Control Offer" has the meaning set forth in Section 1009.
6
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Chief Financial Officer, its Treasurer or an Assistant Treasurer,
and delivered to the Trustee.
"Consolidated Capital Ratio" means, with respect to any Person, as of
the date of any incurrence of Indebtedness or issuance of Disqualified Stock,
the ratio of (1) the aggregate consolidated principal amount of Indebtedness of
such Person and its Restricted Subsidiaries (other than intercompany debt, and
excluding Hedging Obligations permitted under clause (10) of the definition of
"Permitted Indebtedness" herein) and the liquidation preference of Disqualified
Stock of such Person and its Restricted Subsidiaries, in each case, outstanding
at the end of the most recent fiscal quarter for which a consolidated balance
sheet of such Person is available after giving pro forma effect to the
incurrence of such Indebtedness or the issuance of such Disqualified Stock, and
any other Indebtedness incurred or repaid or any other Disqualified Stock
issued, repurchased or retired since the date of such balance sheet to (2) the
Consolidated Net Worth of such Person as of such balance sheet date, after
giving pro forma effect to the issuance and repurchase or retirement of Equity
Interests (other than Disqualified Stock) since the date of such balance sheet.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus:
(1) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income;
plus
(3) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit, and net of the effect
of
7
all payments, if any, pursuant to Hedging Obligations), to the extent that
any such expense was deducted in computing such Consolidated Net Income;
plus
(4) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (excluding
any such non-cash expense to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period, to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for such
period, other than items that were accrued in the ordinary course of
business (and other than items reversing, offsetting or reducing any
accrual or reserve excluded pursuant to the preceding clause (4)), in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
charges of, a Restricted Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of such Person only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended or paid to such Person by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements (for purposes of Section 1010, excluding
the New Credit Facility), instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to that Subsidiary or its
stockholders.
"Consolidated Leverage Ratio" means, with respect to any Person, as
of the date of any incurrence of Indebtedness or issuance of Disqualified Stock,
the ratio of (1) the aggregate consolidated principal amount of Indebtedness of
such Person and its Restricted Subsidiaries (other than intercompany debt, and
excluding Hedging Obligations permitted under clause (10) of the definition of
"Permitted Indebtedness" herein) and the consolidated liquidation preference of
Disqualified Stock of such Person and its Restricted Subsidiaries, in each case,
outstanding at the end of the most recent fiscal quarter for which a
consolidated balance sheet of such person is available, after giving pro forma
effect to the incurrence of such Indebtedness or the issuance of such
Disqualified Stock, and any other Indebtedness incurred or repaid and any other
Disqualified Stock issued, repurchased or retired since the date of such balance
sheet, to (2) the Consolidated Cash Flow of such Person and its Restricted
Subsidiaries for the most recently ended four fiscal quarters immediately
preceding the date of the incurrence of such Indebtedness or issuance of such
Disqualified Stock for which consolidated financial statements of such Person
are available.
8
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
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(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends
or distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary that is not a
Guarantor shall be excluded to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that
Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement (for
purposes of Section 1010, excluding the New Credit Facility), instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, it being
understood that the Net Income of any such Restricted Subsidiary for such
period shall be included in Consolidated Net Income up to the aggregate
amount of cash that such Restricted Subsidiary could have paid pursuant to
such dividends or similar distributions during such period to the Company
or any of its Restricted Subsidiaries;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded; and
(4) the cumulative effect of a change in accounting principles shall
be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of:
(1) the consolidated equity of the common stockholders of such Person
and its Restricted Subsidiaries that are Restricted Subsidiaries as of such
date plus
(2) the respective amounts reported on such Person's balance sheet as
of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only
to the extent of any cash received by such Person upon issuance of such
preferred stock, plus
9
(3) amortization reflected in the consolidated equity of common
stockholders in clause (1) above of amounts deducted in clauses (1) and (2)
below,
less,
(1) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the Issue Date in the book value of any asset owned by such
Person or a Restricted Subsidiary of such Person; and
(2) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in
accordance with GAAP.
"Continuing Director" means, any individual who at the beginning of
the period of determination:
(1) was a member of the Board of Directors; or
(2) was nominated for election or elected to such Board of Directors
with the approval of one or more Permitted Holders or a majority of the
directors who were members of such Board of Directors at the beginning of
such period or whose election or nomination was previously so approved.
"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 Four Albany Street, Attention: Corporate Trust and Agency
Service, Xxx Xxxx, Xxx Xxxx 00000, except that with respect to presentation of
Securities for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee at which, at any particular time,
its corporate agency business shall be conducted.
"Corporation" includes corporations, associations, companies and
business trusts.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
"Default" means any event that is, or with the passage of time or the
giving of notice, or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" or "DTC" means The Depositary Trust Company, New York,
New York, its successors or any other depository appointed in its stead in
accordance with this Indenture.
10
"disinterested member" means, with respect to any transaction, a
member of the Board of Directors of the Company having no material financial
interest in or with respect to such transaction. A member of the Board of
Directors of the Company shall not be deemed to have such a financial interest
solely by reason of such member's holding Capital Stock of the Company, or any
parent thereof of which the Company is a Wholly Owned Subsidiary, or any
options, warrants or other rights in respect of such Capital Stock.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Securities mature. Notwithstanding the preceding sentence,
any Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a Change of Control or an Asset Sale shall
not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with Section 1011.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any offering of common stock of the Company
(other than Disqualified Stock) other than to a Subsidiary of the Company, in
which the gross cash proceeds to the Company are at least $100.0 million.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company or any of
its Restricted Subsidiaries outstanding on the Issue Date (other than the New
Credit Facility).
"Fair Market Value" means, with respect to any asset or Property, the
sale value that would be obtained in an arm's length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy, as determined in good faith by the
Board of Directors.
"Fiber Optic Assets" means assets, rights (contractual or otherwise)
and properties, whether tangible or intangible, used or intended for use in
connection with the
11
development, ownership and operation of undersea fiber optic cable systems
(including complementary assets, such as backhaul capacity and satellite-related
assets).
"Fiber Optic Joint Venture" means any Person that is engaged in the
development, ownership and operation of undersea fiber optic cable systems
(including complementary assets, such as backhaul capacity and satellite related
assets).
"GAAP" means generally accepted accounting principles in effect from
time to time in Bermuda (or the United States of America, to the extent the
Company's consolidated financial statements at any time are prepared in
accordance with generally accepted accounting principles in effect in the United
States of America).
"Global Securities" and "Global Security" shall have the respective
meanings specified in Section 201.
"Government Securities" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness, and "guarantee" when
used as a verb shall have corresponding meaning.
"Guarantee" means the full and unconditional guarantee on a senior,
unsubordinated basis by any Guarantor of the Company's obligations under this
Indenture and the Securities. When used as a verb, "Guarantee" shall have
corresponding meaning.
"Guarantor" means any Restricted Subsidiary of the Company which
executes and delivers a Guarantee in accordance with Section 1018.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
12
(1) currency exchange or interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange or interest rates.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by (a) bonds, notes, debentures or similar instruments
or (b) letters of credit (or reimbursement agreements in respect thereof);
(3) representing Capital Lease Obligations;
(4) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or
trade payable; or
(5) representing any Hedging Obligations;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person, which shall be deemed the lesser of the full amount of
such Indebtedness and the Fair Market Value of the property or asset so secured)
and, to the extent not otherwise included, the guarantee by such Person of any
Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(x) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(y) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Indebtedness.
The term "Indebtedness" shall not include obligations (1) with respect
to letters of credit or other similar instruments securing obligations (other
than obligations described in clause (1), (2)(a), (3) or (5) above in this
definition of "Indebtedness") entered into in the ordinary course of business,
to the extent not drawn upon or, if drawn upon, to the extent such drawing is
reimbursed no later than the third Business Day following receipt by such Person
of a
13
demand for reimbursement, (2) in respect of performance, surety, judgment,
appeal or other similar bonds provided in the ordinary course of business or (3)
arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations in connection with the disposition of any business,
assets or Person.
"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.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Wholly Owned
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the Fair
Market Value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in Section 1011.
"Issue Date" means the first date on which any Securities were issued
under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Material Subsidiary" means any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary of the Company.
"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.
14
"Net Income" means, with respect to any Person, the net income (loss)
of such Person and its Restricted Subsidiaries, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:
(1) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with: (a) any
Asset Sale; or (b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof, in each case after taking into account any available tax credits
or deductions and any tax sharing arrangements and amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale.
"New Credit Facility" means the credit agreement to be entered into
by GlobeNet Communications Holdings Ltd., as borrower, and TD Securities (USA)
Inc., as arranger, and the lenders named therein from time to time, and any
ancillary documents executed in connection therewith (including letters of
credit and any guarantee and security documents, including but not limited to
the Alcatel Guaranty), as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time and any renewal, extension,
refunding, restructuring, replacement or refinancing thereof (whether with the
original administrative agent and lenders or other administrative agent or
agents or other lenders (including Alcatel upon its payment under the Alcatel
Guaranty) and whether provided under the original credit agreement or any other
credit or other successor agreements, including any agreement or agreements (1)
extending or shortening the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (2) adding or deleting borrowers or guarantors thereunder
or (3) increasing the amount of Indebtedness incurred thereunder or available to
be borrowed thereunder to the extent permitted under this Indenture).
"Non-Recourse Debt" means Indebtedness as to which neither the
Company nor any of its Restricted Subsidiaries (1) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (2) is directly or indirectly liable as a guarantor or
otherwise or (3) constitutes the lender.
15
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Chief Financial Officer,
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be reasonably acceptable to the Trustee.
"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) 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, if such
--------
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) 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 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 the
Trustee knows to be so owned 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.
16
"Paying Agent" means any Person (including the Company or any of its
Subsidiaries 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, which initially shall be the Trustee, and who may be changed by the
Company without prior notice to the Holders of the Securities.
"Permitted Business" means any business that is the same as or
related, ancillary or complementary to any business of the Company or any of its
Restricted Subsidiaries on the Issue Date, including without limitation
e-commerce.
"Permitted Holders" means any of the following, and any of the
respective Affiliates or successors of any of the following: (1) Xxxxx
Investment Associates VI, L.P., KEP VI, L.L.C. and Xxxxx & Company, (2) Boston
Ventures Limited Partnership V and Boston Ventures Management, Inc., (3)
Providence Equity Partners III L.P., Providence Equity Operating Partners III
L.P. and Providence Equity Partners Inc., (4) Spectrum Equity Investors III,
L.P., SEI III Entrepreneurs Fund, L.P., Spectrum III Investment Managers' Fund,
L.P. and Spectrum Equity Investors, (5) TD Capital Group Limited, (6) Capital
Communications CDPQ Inc., (7) Sandler Capital Partners IV, L.P., Sandler Capital
Partners IV FTE L.P., SCM Communications CBO I LTD and Sandler Capital
Management, (8) Ontario Municipal Employee Retirement Board and (9) Nautilus
Equity Investors LLC.
"Permitted Indebtedness" means
(1) the incurrence of Indebtedness under or in connection with the
New Credit Facility, including to the extent constituting Indebtedness, any
principal, premium, if any, interest, fees, charges, expenses,
reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof; provided that the aggregate principal
--------
amount of all Indebtedness outstanding under the New Credit Facility after
giving effect to such incurrence does not exceed an amount equal to $450.0
million, less the aggregate amount of all repayments, mandatory or
optional, of the principal of any term Indebtedness under the New Credit
Facility (other than refinancings and repayments that are concurrently
reborrowed) that have actually been made since the date of this Indenture,
provided that in any event the aggregate principal amount of Indebtedness
--------
permitted to be outstanding under the New Credit Facility pursuant to this
clause (1) shall be no less than $100.0 million;
(2) the incurrence of any contingent obligation to reimburse Alcatel
in connection with the Alcatel Guaranty or other obligations under the New
Credit Facility, provided that such Indebtedness under the New Credit
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Facility is permitted to be incurred under clause (1) of this definition of
"Permitted Indebtedness";
(3) the provision by the Company or any of its Restricted
Subsidiaries of a guarantee of Indebtedness under the New Credit Facility;
17
(4) the incurrence by the Company and its Restricted Subsidiaries of
Existing Indebtedness;
(5) the incurrence by the Company of Indebtedness represented by the
Securities (excluding Additional Securities) and by any Restricted
Subsidiary of any Guarantee;
(6) the incurrence by the Company or any Guarantor of Purchase Money
Indebtedness, provided that the amount thereof does not exceed 75% of the
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Company's and its Restricted Subsidiaries' aggregate cost (determined in
accordance with GAAP in good faith by the Board of Directors of the
Company) of the construction, acquisition, development, engineering,
installation and improvement of the applicable Fiber Optic Assets;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of Vendor Financing Indebtedness, provided that the amount
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thereof does not exceed 100% of the Company's and its Restricted
Subsidiaries' aggregate cost (determined in accordance with GAAP in good
faith by the Board of Directors of the Company) of the construction,
acquisition, development, engineering, installation and improvement of the
applicable Fiber Optic Assets, provided, further, that the aggregate amount
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thereof outstanding at any time, including all Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (7), shall not exceed $75.0 million; and provided, further, that the
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amount of Indebtedness of Restricted Subsidiaries of the Company
outstanding under this clause (7) and clause (12) of this definition of
"Permitted Indebtedness", including all Indebtedness incurred to refund,
refinance or replace any such Indebtedness, shall not, in the aggregate,
exceed $75.0 million at any one time;
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace,
Indebtedness that was permitted by this Indenture to be incurred under the
first paragraph of Section 1010 or clauses (4), (5), (6), (7), (8) and (12)
of this definition of "Permitted Indebtedness";
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries and the issuance of preferred stock by a
Restricted Subsidiary to the Company or another Restricted Subsidiary of
the Company; provided, however, that:
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(a) if the Company is the obligor on such Indebtedness, such
Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Securities; and
(b) (i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness or preferred stock being held by
a Person other
18
than the Company or a Restricted Subsidiary thereof and (ii) any sale
or other transfer of any such Indebtedness or preferred stock to a
Person that is not either the Company or a Restricted Subsidiary
thereof, shall be deemed, in each case, to constitute an incurrence of
such Indebtedness by the Company or such Restricted Subsidiary, as the
case may be, that was not permitted by this clause (9);
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred (a) for the purpose
of fixing or hedging interest or foreign currency exchange rate risk with
respect to any floating rate Indebtedness or foreign currency based
Indebtedness, respectively, that is permitted by the terms of this
Indenture to be outstanding; provided that the notional amount of any such
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Hedging Obligation does not exceed the amount of Indebtedness or other
liability to which such Hedging Obligation relates; or (b) for the purpose
of fixing or hedging currency exchange risk with respect to any currency
exchanges made in the ordinary course of business and not for purposes of
speculation;
(11) the incurrence of Indebtedness by the Company that is expressly
subordinated in right of payment to the Securities, provided that:
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(a) the terms of such Indebtedness do not permit any payments of
interest or principal prior to the Stated Maturity of such Indebtedness;
(b) the terms of such Indebtedness do not permit redemption or
other retirement of such Indebtedness prior to the Stated Maturity of such
Indebtedness;
(c) the terms of such Indebtedness do not provide for defaults
or other remedies and such Indebtedness is not subject to acceleration
by its terms, or otherwise;
(d) the Stated Maturity of such Indebtedness occurs after the
Stated Maturity of the Securities; and
(e) the terms of such Indebtedness provide that in the event of
any payment or liquidation of the assets of the Company to creditors upon a
total or partial liquidation or dissolution or in a bankruptcy, insolvency,
receivership or similar proceeding relating to the Company, no
distributions to holders of such Indebtedness will be made until
distributions have been made with respect to all other Indebtedness of the
Company, other than other Indebtedness incurred pursuant to this clause
(11); and
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (12), not to exceed $50.0 million;
provided that the amount of Indebtedness of Restricted Subsidiaries of the
--------
19
Company outstanding under this clause (12) and clause (7) of this
definition of "Permitted Indebtedness" including all Indebtedness incurred
to refund, refinance or replace any such Indebtedness, shall not, in the
aggregate, exceed $75.0 million at any one time.
"Permitted Investments" means:
(1) any Investment in the Company or in any Wholly Owned Restricted
Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Wholly Owned Restricted
Subsidiary of the Company in a Person if as a result of such Investment;
(a) such Person becomes a Wholly Owned Restricted Subsidiary of
the Company; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Company or a Wholly Owned Restricted
Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 1012;
(5) Investments in the form of intercompany Indebtedness to the
extent permitted under clause (9) of the definition of "Permitted
Indebtedness;"
(6) Hedging Obligations, provided that such Hedging Obligations
--------
constitute Permitted Indebtedness permitted by clause (10) of the
definition of "Permitted Indebtedness;"
(7) Investments made in Fiber Optic Joint Ventures, provided that the
aggregate amount of all Investments made pursuant to this clause (7) does
not exceed $45.0 million; provided that no more than $20.0 million of such
--------
Investments shall be in Fiber Optic Joint Ventures over which the Company
does not have, directly or indirectly, the power to direct the policies,
management and affairs;
(8) Investments of the Company or any of its Restricted Subsidiaries
existing on the Issue Date;
(9) Investments in accounts and notes receivable, prepaid expenses
and deposits in the ordinary course of business; Investments in negotiable
instruments held for collection; and pledges or deposits constituting
Permitted Liens;
20
(10) loans or advances made in the ordinary course of business to
officers, directors or employees of the Company or any of its Restricted
Subsidiaries for travel, entertainment and moving and other relocation
expenses; and
(11) any Investment acquired by the Company or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary, in each
case, in satisfaction of a judgment or in connection with or as a result of
a bankruptcy, workout, reorganization or recapitalization of the issuer of
such other Investment or accounts receivable or (b) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with respect
to any secured Investment in default.
In calculating the amount of Investments under clause (7) of this
definition of "Permitted Investments," such amount will equal the aggregate Fair
Market Value of Investments at the time such Investments were made, less the
amount of any net reduction in such Investments resulting from the payment in
cash of dividends, distributions or repayments or from the receipt of proceeds
of dispositions of such Investments, in each case paid to the Company or any
Restricted Subsidiary; provided that the sum of such dividends, distributions,
--------
repayments or disposition proceeds may not exceed the aggregate amount of
Investments made under clause (7) of this definition of "Permitted Investments."
"Permitted Liens" means:
(1) Liens on assets of the Company or any Restricted Subsidiary of
the Company securing Indebtedness under the New Credit Facility permitted
by clause (1) of the definition of "Permitted Indebtedness" and all other
amounts payable under such Indebtedness or in respect thereof;
(2) Liens on assets of the Company or any Restricted Subsidiary of
the Company securing Indebtedness of the Company or any Restricted
Subsidiary of the Company permitted to be incurred under this Indenture and
all other amounts payable under such Indebtedness or in respect thereof,
the principal amount of which Indebtedness shall not at any time exceed the
difference between (a) $450.0 million and (b) the principal amount of any
Indebtedness outstanding pursuant to clause (1) of the definition of
"Permitted Indebtedness";
(3) Liens in favor of the Company or its Restricted Subsidiaries;
(4) Liens on property of a Person existing at the time such Person is
merged or amalgamated with or into or consolidated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were in
--------
existence prior to the contemplation of such merger, amalgamation or
consolidation and do not extend to any assets other than those of the
Person merged or amalgamated with, or into or consolidated with the Company
or the Restricted Subsidiary;
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(5) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that such
--------
Liens were in existence prior to the contemplation of such acquisition;
(6) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, licenses, obligations for utilities, statutory or
regulatory obligations, letters of credit, surety and appeal bonds,
government or other contracts, completion guarantees, performance and
return-of-money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment
of borrowed money);
(7) Liens existing on the Issue Date;
(8) Liens to secure Purchase Money Indebtedness permitted by clause
(6) of the definition of "Permitted Indebtedness" covering only the assets
(or portion thereof) acquired with such Indebtedness;
(9) Liens to secure Vendor Financing Indebtedness permitted by clause
(7) of the definition of "Permitted Indebtedness" covering only the assets
(or portion thereof) acquired with such Indebtedness;
(10) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent, or that in the aggregate are not material, or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
--------
appropriate provision as shall be required in conformity with GAAP shall
have been made therefor;
(11) Liens created for the benefit of the Securities;
(12) Liens imposed by law or arising by operation of law, including,
without limitation, landlords', mechanics', carriers', warehousemen's,
materialmen's, suppliers' and vendors' Liens, Liens for master's and crew's
wages and other similar maritime Liens and mechanics' Liens, in each case
which are incurred in the ordinary course of business for sums not yet
delinquent or that have been bonded or are being contested in good faith,
if such reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made with respect thereto;
(13) zoning restrictions, easements, license, covenants, reservations,
restrictions on the use of real property and defects, irregularities and
deficiencies in title to real property that do not, individually or in the
aggregate, materially affect the ability of the Company or any Restricted
Subsidiary to conduct its business and are incurred in the ordinary course
of business;
(14) Liens incurred or pledges and deposits made in the ordinary
course of business in connection with workers' compensation and
unemployment insurance and
22
other types of social security and other similar legislation or other
insurance-related obligations(including without limitation, pledges or
deposits securing liability to insurance carriers under insurance or self-
insurance arrangements);
(15) Liens securing obligations of the Company or any Restricted
Subsidiary of the Company under Hedging Obligations permitted to be
incurred under clause (10) of the definition of "Permitted Indebtedness";
(16) leases, subleases, licenses or sublicenses granted to others that
do not materially interfere with the ordinary course of business of the
Company and its Restricted Subsidiaries, taken as a whole;
(17) Liens encumbering property or assets under construction (and
related rights) in favor of a contractor or developer, or arising from
progress or partial payments by a customer of the Company or its Restricted
Subsidiaries relating to such property or assets;
(18) any interest or title of a lessor in the property subject to any
capital lease or operating lease;
(19) Liens (including extensions, renewals, and replacements thereof)
on property or assets of, or on shares of Capital Stock or Indebtedness of,
any Person existing (in the case of the original such Lien) at the time
such Person becomes, or becomes a part of, any Restricted Subsidiary of the
Company; provided that such Liens do not extend to or cover any property or
--------
assets of the Company or any of its Restricted Subsidiaries other than the
property, assets, Capital Stock or Indebtedness so acquired (plus
improvements, accessions or proceeds in respect thereof) and were not
created in contemplation of such transaction;
(20) any Lien arising from (x) a judgment that does not, and upon the
expiration of any applicable grace period, will not, result in an Event of
Default and (y) any other judgment, but only, in the case of this clause
(y), so long as such Lien is adequately bonded and all appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired.
(21) Liens securing reimbursement obligations with respect to
commercial letters of credit incurred in the ordinary course of business
which encumber documents and other property relating to such letters of
credit and products and proceeds thereof;
(22) Liens arising out of consignment or similar arrangements for the
sale of goods in the ordinary course of business;
23
(23) Liens arising from filing Uniform Commercial Code financing
statements regarding leases, provided that such Liens do not extend to any
--------
property or assets which are not leased property subject to such leases or
subleases;
(24) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(25) Liens on or sales or transfers of receivables (including related
rights);
(26) Liens on Capital Stock or other securities of an Unrestricted
Subsidiary that secure Indebtedness or other obligations of such
Unrestricted Subsidiary;
(27) any encumbrance or restriction (including, but not limited to,
put and call agreements) with respect to Capital Stock of any joint venture
or similar arrangement pursuant to any joint venture or similar agreement;
(28) Liens on cash set aside at the time of the incurrence of any
Indebtedness, or government securities purchased with such cash, in either
case to the extent that such cash or government securities prefund the
payment of interest on such Indebtedness and are held in an escrow account
or similar arrangement to be applied for such purpose;
(29) the escrow arrangement pursuant to which the proceeds of the
borrowings under the Term D Loan of the New Credit Facility will initially
be held; and
(30) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $5.0 million at any one time outstanding and that (a)
are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to refund, refinance or replace, other Indebtedness
of the Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness); provided that:
--------
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), and premium, if any, plus accrued
interest on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity
24
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is expressly subordinated in right of payment to the
Securities, such Permitted Refinancing Indebtedness has a final maturity
date equal to or later than the final maturity date of, and is subordinated
in right of payment to, the Securities on terms that taken as a whole are
at least as favorable to the Holders of Securities as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) except in the case of Indebtedness issued in exchange for, or the
net proceeds of which are used to refund, refinance or replace,
Indebtedness incurred pursuant to, and as permitted by clause (7) or (12)
of the definition of "Permitted Indebtedness" (or other Permitted
Refinancing Indebtedness incurred in respect of such Indebtedness), such
Indebtedness is incurred either (a) by the Company or any Guarantor or (b)
by the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"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" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Persons preferred or preference stock whether now outstanding or issued
after the date of this Indenture, and includes, without limitation, all classes
and series of preferred or preference stock.
"Private Equity Financing" means the private offering of common
shares of the Company scheduled to close on the Issue Date, whether or not such
offering closes on some date other than the Issue Date.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person.
"Purchase Money Indebtedness" means Indebtedness of the Company
(including Acquired Debt and Capital Lease Obligations, mortgage financings and
purchase money obligations) incurred for the purpose of financing or
refinancing, all or any part of the cost of
25
construction, engineering, acquisition, installation, development or improvement
by the Company or any Restricted Subsidiary of any Fiber Optic 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.
"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.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company, TD Securities (USA) Inc. and Credit Suisse First
Boston Corporation dated as of the date of this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 1 or July 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.
"Responsible Officer", when used with respect to the Trustee, means
any managing director, any director, any vice president, any assistant vice
president, any associate 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 Global Securities" and "Restricted Global Security" shall
have the respective meanings specified in Section 201.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" means any of the following:
(1) the declaration or payment of any dividend on or the making of any
payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation,
any payment in connection with any merger, amalgamation or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the
direct or indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company or a Restricted
Subsidiary of the Company);
26
(2) the purchase, redemption or other acquisition or retirement for
value (including, without limitation, in connection with any merger,
amalgamation or consolidation involving the Company) of any Equity
Interests of the Company or any direct or indirect parent of the Company or
any Restricted Subsidiary of the Company (other than any such Equity
Interests owned by the Company or any Restricted Subsidiary of the Company,
and other than the purchase by the Company of newly-issued or outstanding
equity Interests of a Restricted Subsidiary or the purchase by a Restricted
Subsidiary of newly-issued or outstanding Equity Interests of another
Restricted Subsidiary);
(3) the making of any payment of principal on, or the purchase,
redemption, defeasance or other acquisition or retirement for value of,
any Indebtedness that is expressly subordinated in right of payment to the
Securities, except a payment of principal at the Stated Maturity thereof;
or
(4) the making of any Restricted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Security" and "Securities" have the meaning stated in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture and includes any Additional
Securities that may be issued under a supplemental indenture.
"Security Register" and "Securities Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, (1) with respect to any Indebtedness, the
date specified in the original documentation governing such Indebtedness as the
fixed date on which the final installment of principal of such Indebtedness is
due and payable and (2) with respect to any installment of interest or principal
on any series of Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation
27
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person:
(1) any corporation a majority of whose Capital Stock with voting
power, under ordinary circumstances, to elect directors is, at the date of
determination, directly or indirectly, owned by such Person (a
"subsidiary"), by one or more subsidiaries of such Person or by such Person
and one or more subsidiaries of such Person;
(2) a partnership in which such Person or a subsidiary of such Person
is, at the date of determination, a general partner of such partnership; or
(3) any partnership, limited liability company or other Person in
which such Person, a subsidiary of such Person or such Person and one or
more subsidiaries of such Person, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the
power to elect or appoint or direct the election or appointment of the
managing partner or member of such Person or, if applicable, a majority of
the directors or other governing body of such Person.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" means any government or political subdivision or
territory or possession or any authority therein or thereof having power to tax.
"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.
"U.S. Dollars" or "United States dollars" each mean the legal
currency of the United States of America.
"Unrestricted Global Securities" and "Unrestricted Global Security"
shall have the respective meanings specified in Section 201.
"Unrestricted Subsidiary" means any Subsidiary designated as such
pursuant to Section 1020.
"Vendor Financing Indebtedness" means Indebtedness of the Company or
any of its Restricted Subsidiaries incurred pursuant to any agreements between
the Company or any of
28
its Restricted Subsidiaries and one or more vendors or lessors of Fiber Optic
Assets used or intended for use in a Permitted Business by the Company or any of
its Restricted Subsidiaries (or any Affiliate of any such vendor or lessor or
any lender or group of lenders led by or arranged for by any such vendor, lessor
or Affiliate) providing financing for all or any part of the cost of
construction, engineering, acquisition, installation, development or improvement
by the Company or any of its Restricted Subsidiaries of any Fiber Optic Assets
from any such vendor or lessor (or any such Affiliate or lender) 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.
"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 as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest one-
twelfth) that will elapse between such date and the making of such payment;
by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Wholly
Owned Subsidiary of such Person that is a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares and shares required to be held by
nationals of any jurisdiction) shall at the time be owned by such Person and/or
by 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, upon the request of the Trustee, 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
29
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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) 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 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 and
form one instrument.
30
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 conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner 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 eleven
months after the record date.
31
(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.
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 and Agency Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office: 0 Xxxxxx'x Xxx
Xxxx, Xxxxxxxxx, Xx. David's DDBX, Bermuda, Attention: Corporate Secretary,
or at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each 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. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. 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
32
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.
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
Securities Registrar and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
SECTION 112. Conflict with Trust Indenture Act.
---------------------------------
Prior to the effectiveness of the Exchange Offer Registration
Statement or the effectiveness of the Shelf Registration Statement, 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. Upon the effectiveness of the Exchange Offer Registration Statement
or the effectiveness of the Shelf Registration Statement, this Indenture shall
be subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions. 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.
33
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 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
--------
intervening period.
SECTION 114. Agent for Service; Submission to Jurisdiction; Waiver
-----------------------------------------------------
of Immunities.
-------------
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation Systems, 0000 Xxxxxxxx, Xxx Xxxx, X.X. 00000, as
its authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Securities or this Indenture that may be
instituted in any federal or state court in the State of New York, Borough of
Manhattan, or brought under federal or state securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding, and (iii) agrees that service of process upon CT Corporation
System and written notice of said service to it (mailed or delivered to the
Company's Corporate Secretary at its principal office as specified in Section
105(2)) shall be deemed in every respect effective service of process upon it in
any such suit or proceeding. The Company further agrees to take any and all
actions, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as this Indenture shall
be in full force and effect.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
SECTION 115. Conversion of Currency.
----------------------
The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and this
Indenture:
34
(a) (i) If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to convert
into a currency (the "judgment currency") an amount due in U.S. Dollars,
then the conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which the judgment is given or the order of
enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company
will pay such additional amount (or, as the case may be, be refunded such
lesser amount), if any, as may be necessary so that the amount paid in the
judgment currency when converted at the rate of exchange prevailing on the
date of receipt will produce the amount in U.S. Dollars originally due.
(b) In the event of the winding-up of the Company at any time while
any amount or damages owing under the Securities and this Indenture, or any
judgment or order rendered in respect thereof, shall remain outstanding,
the Company shall indemnify and hold the Holders and the Trustee harmless
against any deficiency arising or resulting from any variation in rates of
exchange between (1) the date as of which the equivalent of the amount in
U.S. Dollars due or contingently due under the Securities and this
Indenture (other than under this subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs
of claim in such winding-up. For the purpose of this subsection (b), the
final date for the filing of proofs of claim in the winding-up of the
Company shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
(c) The obligations contained in subsections (a)(ii) and (b) of this
Section 115 shall apply irrespective of any waiver or extension granted by
any Holder (other than with respect to the Holder granting the waiver or
extension) or the Trustee and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim
in the winding-up of the Company for a liquidated sum in respect of amounts
due hereunder (other than under subsection (b) above) or under any such
judgment or order. In the case of subsection (b) above, the amount of such
deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by Bankers Trust Company at its central foreign exchange desk in its
head office in New York City at 12:00 noon (New York City time) for
purchases of U.S. Dollars with the judgment currency other than U.S.
Dollars referred to in subsections (a) and (b) above and includes any
premiums and costs of exchange payable.
35
(e) The Trustee shall have no duty or liability with respect to
monitoring or enforcing this Section 115 and shall have no liability to the
Holders due to fluctuations in currency rates.
SECTION 116. Currency Equivalent.
-------------------
Except as provided in Section 115, for purposes of the construction of
the terms of this Indenture or of the Securities, in the event that any amount,
including any amounts owed by the Company to the Trustee, is stated herein in
the currency of one nation (the "First Currency"), as of any date such amount
shall also be deemed to represent the amount in the currency of any other
relevant nation (the "Other Currency") which is required to purchase such amount
in the First Currency at the rate of exchange quoted by the Bankers Trust
Company at its central foreign exchange desk in its head office in New York City
at 12:00 noon (New York City time) on the date of determination.
SECTION 117. No Recourse Against Others; Waiver and Release.
----------------------------------------------
NO DIRECTOR, OFFICER, EMPLOYEE, INCORPORATOR OR SHAREHOLDER OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES, IN SUCH CAPACITY, SHALL HAVE ANY LIABILITY
FOR ANY OBLIGATIONS OF THE COMPANY OR ITS SUBSIDIARIES UNDER THE SECURITIES OR
THIS INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF OR BY REASON OF SUCH
OBLIGATIONS OR THEIR CREATION. EACH HOLDER BY ACCEPTING ANY OF THE SECURITIES
WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE ARE PART OF THE
CONSIDERATION FOR THE ISSUANCE OF THE SUBSIDIARIES.
SECTION 118. Reliance on Financial Data.
--------------------------
In computing any amounts under this Indenture:
(i) to the extent relevant in computing any amounts under this
Indenture, the Company shall use audited financial statements of the
Company, its Subsidiaries, any Person that would become a Subsidiary in
connection with the transaction that requires the computation and any
Person from which the Company or a Subsidiary has acquired an operating
business, or is acquiring an operating business in connection with the
transaction that requires the computation (each such Person whose financial
statements are relevant in computing any particular amount, a "Relevant
Person") for the period or portions of the period to which the computation
relates for which audited financial statements are available on the date of
computation and unaudited financial statements and other current financial
data based on the books and records of the Relevant Person or Relevant
Persons, as the case may be, to the extent audited financial statements for
the period or any portion of the period to which the computation relates
are not available on the date of computation, and
36
(ii) the Company shall be permitted to rely in good faith on the
financial statements and other financial data derived from the books and
records of any Relevant Person that are available on the date of the
computation.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificate of authentication shall
be in substantially the forms set forth in this Article, 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, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
Initial Securities offered and sold to "qualified institutional
buyers" (as defined in Rule 144A ("Rule 144A") under the Securities Act) in
reliance on Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form without
interest coupons substantially in the form set forth in this Article (each a
"Restricted Global Security" and collectively the "Restricted Global
Securities"), deposited with, or on behalf of, the Depositary or with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Restricted Global
Securities will be registered in the name of a nominee of the Depositary and
deposited with the Trustee on behalf of the purchasers thereof. The aggregate
principal amount of each Restricted Global Security may from time to time be
increased or decreased by adjustments made on the records of the Depositary or
its nominee, or of the Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S shall
be issued in the form of one or more permanent global Securities in definitive,
fully registered form without interest coupons substantially in the form set
forth in this Article (each an "Unrestricted Global Security" and collectively
the "Unrestricted Global Securities," and, together with the Restricted Global
Security, the "Global Securities" or each individually, a "Global Security"),
deposited with, or on behalf of, the Depositary or with the Trustee, as
custodian for the Depositary, duly
37
executed by the Company and authenticated by the Trustee as hereinafter
provided. Each Unrestricted Global Security will be registered in the name of a
nominee of the Depositary and deposited with the Trustee on behalf of the
purchasers thereof, and, if any such purchaser so elects, for the account of the
Euroclear System ("Euroclear") or Cedelbank. The aggregate principal amount of
the Unrestricted Global Security may from time to time be increased or decreased
by adjustments made on the records of the Depositary or its nominee, or of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
SECTION 202. Restrictive Legend
------------------
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case as
provided for in the Registration Rights Agreement, the Restricted Global
Security shall bear the following legend (the "Private Placement Legend") on the
face thereof:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT OF 1933 IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING WITH THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OF 1933, (3) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT OF 1933 IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE
UNITED STATES."
38
SECTION 203. Form of Face of Security
------------------------
The Securities are to be substantially in the following forms:
Unless this Security is presented by an authorized representative of
The Depository Trust Company, a New York corporation (55 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx) ("XXX") to the Corporation or its agent for registration of transfer,
exchange or payment, and any Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of DTC and
any payment hereon is made to Cede & Co. (or such other person as requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein./*/
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of DTC or a nominee of
DTC. This Security is exchangeable for Securities registered in the name of a
Person other than DTC or its nominee only 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 DTC to a nominee of DTC or by a nominee of DTC to
DTC or another nominee of DTC) may be registered except in limited
circumstances.*
GLOBENET COMMUNICATIONS GROUP LIMITED
13% [Series B]/**/ Senior Note Due 2007
CUSIP: ________
No. __________ $______________
GlobeNet Communications Group Limited, a Bermuda company (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
____________________ Dollars [(or such other amount that may from time to time
be indicated on the records of the Trustee as a result of increases or decreases
by adjustments made on the records of the Trustee as the custodian for the
Depository, in
____________________________
/*/ Include only for Global Securities
/**/ Include only for Exchange Securities
39
accordance with the rules and procedures of the Depository)]/*/ on July 15,
2007, at the office or agency of the Company referred to below, and to pay cash
interest thereon and semi-annually thereafter, on January 15 and July 15 in each
year, from the most recent Interest Payment Date to which cash interest has been
paid or duly provided for, at the rate of 13% per annum [subject to adjustment
as provided below]/**/ until the principal hereof is paid or duly provided for,
and (to the extent lawful) to pay on demand interest on any overdue interest at
the rate borne by the Securities from the date on which such overdue interest
becomes payable to the date payment of such interest has been made or duly
provided for [subject to adjustment as provided below]/***/
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 January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for 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, on) 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 (i) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register, or (ii) by wire
transfer of such interest in immediately available funds to an account located
in the United States maintained by the Depository.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of July 14, 1999, between the Company
and the Initial Purchasers named therein. In the event that (i) (a) the Company
has not filed a registration statement (the "Exchange Offer Registration
Statement"), with the Securities and Exchange Commission (the "Commission") with
respect to a registered offer (the "Exchange Offer") to exchange this Security
for a security (an "Exchange Security") with terms identical in all material
respects to this Security (except that such security will not contain terms with
respect to registration rights
______________________
/*/ Include only for Global Securities
/**/ Include only for Initial Securities
/***/ Include only for Initial Securities
40
or transfer restrictions, and provisions regarding interest and Liquidated
Interest (described below) will be modified or eliminated, as appropriate) on or
prior to the 60th day after July 14, 1999, or (b) the Exchange Offer
Registration Statement has not been declared effective under the Securities Act
on or prior to the 180th day after July 14, 1999, or (c) the Exchange Offer has
not been consummated on or prior to the 210th day after July 14, 1999; or (ii)
in lieu thereof, the shelf registration statement (the "Shelf Registration
Statement") under the Securities Act that has been filed by the Company, as
promptly as practicable, covering resales of this Security has not been declared
effective on or prior to the 60th day after such filing; or (iii) either the
Exchange Offer Registration Statement or, if applicable, the Shelf Registration
Statement is declared effective but thereafter ceases to be effective (subject
to certain exceptions) in connection with resales of this Security or Exchange
Securities in accordance with and during the periods specified in the
Registration Rights Agreement without being succeeded immediately by an
additional registration statement filed and declared effective, in each case (i)
through (iii) upon the terms and conditions set forth in the Registration Rights
Agreement (each such event referred to in clauses (i) through (iii), a
"Registration Default"), then additional interest ("Liquidated Interest") will
accrue (in addition to any stated interest on the Securities) from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Liquidated Interest
will be payable at a rate per annum equal to 0.5% of the principal amount of the
Securities during the first 90-day period following such Registration Default
and shall increase by 0.25% per annum of the principal amount of the Securities
for each subsequent 90-day period, but in no event shall such rates exceed 1.00%
per annum in the aggregate regardless of the number of Registration Defaults or
any other circumstance. The amount of accrued Liquidated Interest shall be
determined on the basis of the number of days actually elapsed.]*
Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued for the Initial Securities in
connection with the Exchange Offer will be treated as a single class of
securities under the Indenture.
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.
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.
_____________________________
* Include only for Initial Securities.
41
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GLOBENET COMMUNICATIONS
GROUP LIMITED
BY_______________________________
Attest:
_______________________________
Authorized Signature
SECTION 204. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company designated as its 13% [Series B]* Senior Notes Due 2007 (herein called
the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount up to $450,000,000, which may
be issued under an indenture (herein called the "Indenture") dated as of July
14, 1999 between the Company and Bankers Trust Company, 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 Company will pay to the Holders such Additional Amounts as may
become payable under Section 1022 of the Indenture.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days notice, at any time on or after July 15, 2004, as a whole or
in part, at the election of the Company, at a Redemption Price equal to the
percentage of the principal amount set forth below if redeemed during the 12-
month period beginning July 15, of the years indicated:
__________________________
* Include for Exchange Securities only.
42
Redemption
Year Price
------ -----------
2004 106.500%
2005 103.250%
and thereafter at 100% of the principal amount, together in the case of any such
redemption with accrued interest, if any, to the Redemption Date, all as
provided in the Indenture.
In addition, at any time or from time to time prior to July 15, 2002,
the Company may redeem up to 35% of the aggregate principal amount of Securities
originally issued under the Indenture at a redemption price of 113% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the redemption date, with the proceeds from one or more Equity Offerings;
provided that:
(1) at least 65% of the aggregate principal amount of Securities
originally issued under the Indenture remain outstanding immediately after
the occurrence of any such redemption; and
(2) the redemption must occur within 90 days after the date of the
closing of the Equity Offering.
The Securities are also subject to redemption at the option of the
Company, in whole but not in part, at 100% of the principal amount in the event
that the Company becomes obligated to pay Additional Amounts in respect of the
Securities.
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.
Upon the occurrence of a Change of Control, 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.
43
The Securities are not entitled to the benefit of any sinking fund.
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 the related 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. 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.
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 Securities 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.
As provided for in the Indenture, the Company may, subject to certain
limitations, from time to time, without notice to or the consent of the Holders,
create and issue Additional Securities so that such Additional Securities shall
be consolidated and form a single series with the Securities initially issued by
the Company and shall have the same terms as to status, redemption or otherwise
as the Securities originally issued. Any Additional Securities shall be issued
with the benefit of an indenture supplemental to the Indenture.
44
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 Securities, but the Company may require payment of a sum sufficient
to cover any tax or other 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.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
SECTION 205. 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.
[NAME OF TRUSTEE,]
as Trustee
By__________________________________
Authorized Signatory
45
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 $450,000,000 (of
which $300,000,000 was issued, authenticated and delivered on the date hereof),
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, 1012 or 1108.
The Securities shall be known and designated as the "13% Senior Notes
Due 2007" of the Company. Their Stated Maturity shall be July 15, 2007, and
they shall bear interest at the rate of 13% per annum from July 14, 1999, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable in arrears on January 15, 2000 and semi-annually
thereafter on January 15 and July 15 in each year and at said Stated Maturity,
until the principal thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in the City of New York (which initially will be the office of the
Trustee located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000), or at such
other office or agency of the Company as may be maintained for such purpose;
provided, however, that, at the option of the Company, interest may be paid by
-------- -------
check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Security Register.
Additional Securities ranking pari passu with the Securities issued
the date hereof may be created and issued from time to time by the Company
without notice or consent to the Holders and shall be consolidated with and form
a single series with the Securities initially issued and shall have the same
terms as to status, redemption or otherwise as the Securities originally issued,
provided that, the aggregate principal amount of Securities issued shall be no
--------
more than U.S.$450,000,000; and provided further that, the Company's ability to
-------- -------
issue Additional Securities shall be subject to the Company's compliance with
Section 1010. Any Additional Securities shall be issued with the benefit of an
indenture supplemental to this Indenture.
The Securities shall be redeemable as provided in Article Eleven.
At the election of the Company, the entire Indebtedness 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.
46
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman, its Executive Vice President or its Chief Financial Officer, 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. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, 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 Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
The Trustee shall authenticate Securities for original issue in an
aggregate principal amount not to exceed $450,000,000 upon receipt of a Company
Order, which shall specify the amount of Securities to be authenticated, the
names of the Persons in which such Securities shall be registered and the date
on which such Securities are to be authenticated and direct the Trustee to
authenticate such Securities together with an Officers' Certificate certifying
that all conditions precedent to the issuance of such Securities contained
herein have been complied with.
The Company may, without prior notice to the Holders, enter into an
appropriate agency agreement with any Securities Registrar, Paying Agent or co-
registrar not a party to this
47
Indenture, which shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Securities Registrar or Paying
Agent, the Trustee shall perform such duties and shall be entitled to
appropriate compensation therefor pursuant to Section 606. The Company or any of
its Subsidiaries may act as Paying Agent, Securities Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Securities Registrar and
Paying Agent in connection with the Securities.
In case the Company, pursuant to Article Eight, shall be consolidated
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other 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 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
48
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.
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 it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchanges 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 "Securities Registrar")
for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided. The Company may change the Securities Registrar
without prior notice to the Holders of the Securities, and the Company or any of
its Subsidiaries may act as Securities Registrar.
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 (including an exchange of Initial Securities for Exchange Securities),
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, provided that no exchange
--------
of Initial Securities for Exchange Securities shall occur until an Exchange
Offer Registration Statement shall have been declared effective by the
Commission (confirmed in an Officers' Certificate) and that the Initial
Securities to be exchanged for the Exchange Securities shall be canceled by the
Trustee.
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 Securities
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Securities Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
49
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any Tax that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1009, 1012 or 1108 not involving any transfer.
The Company shall not be required (i) to 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 as may be required by them to
save each of them harmless, then, in the absence of 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.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any Tax 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.
50
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 (i) 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 or (ii) transfer
to an account located in the United States maintained by the Depositary.
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 having been
such Holder, 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 clause
(1) or (2) below:
(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 clause (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
51
system on which the Securities may be listed or eligible for trading, and
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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 be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
------------
All 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 canceled 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 canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that canceled 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 of twelve 30-day months.
52
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.
SECTION 312. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be registered in the
name of the Depositary or the nominee of such Depositary, (ii) be deposited
with, or on behalf of, the Depositary or with the Trustee, as custodian for
Depositary and (iii) if a Restricted Global Security, bear the legend set forth
in Section 202.
The Depositary or its nominee shall be the Holder of the Global
Securities, and owners of beneficial interests in the Securities represented by
the Global Securities shall hold such interests pursuant to the Applicable
Procedures. Any such owner's beneficial ownership of any such Securities will
be shown only on, and the transfer of such ownership interest shall be effected
only through, records maintained by the Depositary or its nominee. Investors in
an Unrestricted Global Security may hold their interests in an Unrestricted
Global Security through Euroclear or Cedelbank, if they are participants in such
systems, or indirectly through organizations which are participants in such
systems. Euroclear and Cedelbank will hold interests in an Unrestricted Global
Security on behalf of their participants through customers' securities accounts
in their respective names on the books of their respective depositories, which,
in turn, will hold such interests in an Unrestricted Global Security in
customers' securities accounts in the depositories' names on the books of the
Depositary. All interests in a Global Security, including those held through
Euroclear or Cedelbank, may be subject to the Applicable Procedures.
(b) Transfers of any Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in any
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 312. Unless (i) the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for a Global Security or ceases to be a "Clearing Agency" registered under the
Exchange Act or announces an intention permanently to cease business or does in
fact do so and a successor Depositary is not appointed by the Company within 90
days of such notice, (ii) a Default or an Event of Default has occurred and is
continuing with respect to a Global Security, (iii) in the case of a Global
Security held for the account of Euroclear or Cedelbank, Euroclear or Cedelbank,
as the case may be, is closed for business for 14 continuous Business Days or
announces an intention to cease or permanently ceases business, or (iv) the
Company notifies the Trustee in writing that it elects to cause the issuances of
the Securities in certificated form,
53
owners of beneficial interests in a Global Security will not be entitled to have
any portions of such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form and
will not be considered the owners or holders of the Global Security.
(c) Securities issued in exchange for a Global Security or any
portion thereof pursuant to the last sentence of subsection (b) of this Section
shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Security
or portion thereof to be so exchanged, shall be registered in such names and be
in such authorized denominations as the Depositary shall designate and shall
bear any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Securities
Registrar. With regard to any Global Security to be exchanged in part, either
such Global Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security issuable on
such exchange to or upon the order of the Depositary or an authorized
representative thereof. In the event of the occurrence of any of the events
specified in the last sentence of subsection (b) of this Section 312, the
Company will promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive form.
(d) Neither the Company nor the Trustee shall have at any time any
responsibility or liability to any owner of any beneficial interest in any
Security or to any other person for any error, omission, action or failure to
act on the part of the Depositary, Euroclear or Cedelbank with respect to
payment, when due, to any such owner of the principal, premium, if any, and
interest on the Securities, proper recording of beneficial ownership of
Securities, proper transfers of such beneficial ownership or any notices to
beneficial owners or any other matter of similar or different kind pertaining to
the Securities.
SECTION 313. Special Transfer Provisions.
---------------------------
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Exchange Offer Registration Statement,
in each case pursuant to the Registration Rights Agreement, the following
transfer provisions shall apply:
(a) Restricted Global Security to Unrestricted Global Security. If,
----------------------------------------------------------
at any time, an owner of a beneficial interest in a Restricted Global
Security deposited with the Depositary (or the Trustee as custodian for the
Depositary) wishes to transfer its interest in such Restricted Global
Security to a Person who is required or permitted to take delivery thereof
in the form of an interest in an Unrestricted Global Security, such owner
shall, subject to the Applicable Procedures, exchange or cause the exchange
of such beneficial interest for an equivalent beneficial interest in an
Unrestricted Global Security as provided in this Section 313(a). Upon
receipt by the Trustee of (1) instructions given
54
in accordance with the Applicable Procedures from an Agent Member directing
the Trustee to credit or cause to be credited a beneficial interest in an
Unrestricted Global Security in an amount equal to the beneficial interest
in the Restricted Global Security to be exchanged, (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary to be credited with
such increase, and (3) a certificate substantially in the form of Exhibit
A-1 hereto given by the owner of such beneficial interest, the Trustee, as
Securities Registrar, shall instruct the Depositary to reduce or cause to
be reduced the aggregate principal amount of the Restricted Global Security
and to increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Security by the principal amount of the beneficial
interest in the Restricted Global Security to be exchanged, to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Unrestricted Global Security
equal to the reduction in the aggregate principal amount of the Restricted
Global Security, and to debit, or cause to be debited, from the account of
the Person making such exchange or transfer the beneficial interest in the
Restricted Global Security that is being exchanged or transferred.
(b) Unrestricted Global Security to Restricted Global Security. If,
----------------------------------------------------------
at any time, an owner of a beneficial interest in an Unrestricted Global
Security deposited with the Depositary (or with the Trustee as custodian
for the Depositary) wishes to transfer its interest in such Unrestricted
Global Security to a Person who is required or permitted to take delivery
thereof in the form of an interest in a Restricted Global Security, such
owner shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a
Restricted Global Security, as provided in this Section 313(b). Upon
receipt by the Trustee of (1) instructions given in accordance with the
Applicable Procedures from an Agent Member, directing the Trustee, as
Securities Registrar, to credit or cause to be credited a beneficial
interest in a Restricted Global Security equal to the beneficial interest
in an Unrestricted Global Security to be exchanged, and (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary to be credited with
such increase, the Trustee, as Securities Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount
of the Unrestricted Global Security and to increase or cause to be
increased the aggregate principal amount of the Restricted Global Security
by the principal amount of the beneficial interest in the Unrestricted
Global Security to be exchanged, and the Trustee, as Securities Registrar,
shall instruct the Depositary, concurrently with such reduction, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Restricted Global Security equal
to the reduction in the aggregate principal amount of the Unrestricted
Global Security and to debit or cause to be debited from the account of the
Agent Member acting for the Person making such transfer the beneficial
interest in the Unrestricted Global Security that is being transferred.
(c) Restricted Global Security to Unrestricted Global Security After
----------------------------------------------------------------
Two Years. If the holder of a beneficial interest in the Restricted Global
---------
Security wishes at
55
any time after July 14, 2001 to (A) transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security or (B) to exchange such interest for a
beneficial interest in an Unrestricted Global Security, such transfer or
exchange may be effected, subject to the Applicable Procedures, only in
accordance with this Section 313(c). Upon receipt by the Trustee of (1) in
the case of a transfer or exchange of an interest in a Restricted Global
Security, instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be
credited a beneficial interest in an Unrestricted Global Security in an
amount equal to the beneficial interest in the Restricted Global Security
to be so transferred or exchanged, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
participant account of the Depositary and the Euroclear or Cedelbank
account (if applicable) to be credited with such beneficial interest and
(3) a certificate substantially in the form of Exhibit A-2 hereto given by
the holder of such beneficial interest, the Trustee, as Securities
Registrar, shall instruct the Depositary to reduce the principal amount of
the Restricted Global Security, and to increase the principal amount of the
Unrestricted Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred or
exchanged, and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Unrestricted Global Security having a principal amount equal to the amount
by which the principal amount of the Restricted Global Security was reduced
upon such transfer or exchange.
(d) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of and each owner of a beneficial interest in
such 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 Trustee shall have no duty or liability with respect to any Holder's or
beneficial owner's compliance with the Private Placement Legend or this
Section 313(d).
The Securities Registrar shall retain copies of all letters, notices
and other written communications received pursuant to this Section 313. 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 written notice to the Securities Registrar.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities expressly provided for
56
herein) 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 Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) 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
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee 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, as
trust funds in trust solely for the benefit of Holders, cash in U.S.
Dollars, non-callable Government Securities, or a combination thereof,
in an amount sufficient, without consideration of any reinvestment
interest, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other material instrument to which the
Company is a party or by which the Company is bound;
(3) the Company has paid or caused to be paid all other sums payable
by the Company under the Indenture;
57
(4) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Securities at Stated Maturity or the Redemption Date, as the case may be;
and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the 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) default in the payment of any interest on, or Additional Amounts,
if any, with respect to, any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) failure by the Company or any of its Restricted Subsidiaries to
make or consummate a Change of Control Offer or Asset Sale Offer,
respectively, when required in accordance with Section 1009 or Section
1012, or to comply with Article Eight; or
58
(4) failure by the Company or any of its Restricted Subsidiaries for
30 days after notice to comply with Section 1009 and Section 1012 (except
for any failure governed by the preceding clause (3)), or Section 1010 and
Section 1011; or
(5) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a default in the
performance, or breach, of a covenant or agreement which is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(6) there shall have occurred one or more defaults by the Company or
any of its Subsidiaries under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company, or any
of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay at final maturity such
Indebtedness prior to the expiration of the grace period provided in
such Indebtedness (a "Payment Default"); or
(b) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more; or
(7) the Company or any of its Restricted Subsidiaries shall fail to
pay final judgments which are non-appealable which require the payment in
money, either individually or in an aggregate amount, that is more than
$10,000,000 (net of applicable insurance coverage which is acknowledged in
writing by the insurer), which judgments are not paid, discharged or stayed
for a period of 60 days; or
(8) any Guarantee ceases to be in full force and effect or is
declared null and void or a Guarantor denies that it has any further
liability under a Guarantee, or gives notice to such effect (other than by
reason of the termination of this Indenture or the release of the Guarantee
in accordance with this Indenture) and such condition shall have continued
for 30 days after notice of such failure; or
59
(9) the Company or any Restricted Subsidiary pursuant to or under or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case against
it;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its creditors
or files a proposal or other scheme of arrangement involving the
rescheduling or composition of its Indebtedness;
(e) files a petition in bankruptcy or an answer or consent
seeking reorganization or relief for the Company or any Restricted
Subsidiary; or
(f) consents to the filing of such petition in bankruptcy or the
taking possession by a Custodian of it or any substantial part of its
property; or
(10) a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against the Company or any Restricted
Subsidiary, and such Bankruptcy Order remains unstayed and in effect for 30
consecutive days; or
(11) a Custodian shall be appointed out of court for the Company or
any Restricted Subsidiary, or with respect to all or any substantial part
of the property of the Company or any Restricted Subsidiary, or any
encumbrancer shall take possession of all or any substantial part of the
property of the Company or any Restricted Subsidiary.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(9), 501(10) or 501(11)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Securities Outstanding 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 the Company's receipt
of any such written notice such principal amount shall become immediately due
and payable. If an Event of Default specified in Section 501(9), 501(10) or
501(11) occurs and is continuing with respect to the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary of
the Company, then the principal amount of all the Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Company will deliver to the
Trustee, within 10 days after becoming aware of the occurrence thereof, notice
of any acceleration referred to in this Section 502.
60
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, the Holders of a majority
in principal amount of the Securities Outstanding, 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 sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
(B) all overdue interest on all Outstanding Securities;
(C) 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; and
(D) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne by the
Securities; and
(2) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest 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.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(6) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if:
61
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon written 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.
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 therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, 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
62
and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
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, 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 or other property collected by the Trustee pursuant to this
Article 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
606;
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.
63
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture 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, 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.
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
64
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 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
The Holders of not less than a majority in 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 which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
65
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all the
Securities, by notice to the Trustee, waive any existing Default or Event of
Default hereunder and its consequences, except a continuing Default or Event of
Default:
(1) in respect of 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.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder by its acceptance
of any Security shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding more
than 25% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security or in the coupons for such interest
(or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law 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 will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
66
ARTICLE SIX
THE TRUSTEE
SECTION 601. Defaults.
--------
(a) If a Default or Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
its own affairs.
(b) Within 90 days after the occurrence of any Default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
-------- -------
case of a Default in the payment of the principal of (or premium, if any) 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 or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any Default of the character
-------- -------
specified in Section 501(5) no such notice to Holders shall be given until at
least 60 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board 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, 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
67
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; 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.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
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 604. May Hold Securities.
-------------------
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The Trustee, any Paying Agent, any Securities 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, Securities Registrar or such
other agent.
SECTION 605. 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.
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
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, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense, including reasonable counsel fees and
expenses, incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Company and the Holders agree that the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(9), (10) or (11), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to
69
constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee under Section 608 (to
the extent that any compensation or reimbursement obligation arises prior to
such resignation or removal).
SECTION 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in 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 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
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(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 office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders 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.
SECTION 609. 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.
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SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the 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 for 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 or consolidation.
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).
72
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 and in accordance with Section 1008.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
(a) The Company shall not, directly or indirectly: (1) amalgamate or
consolidate or merge with or into another Person (whether or not the Company is
the surviving or continuing corporation); or (2) sell, assign, transfer, convey
or otherwise dispose of all or substantially all of its properties or assets, in
one or more related transactions, to another Person; unless:
(1) either: (a) the Company is the surviving or continuing
corporation or (b) the Person formed by, surviving or continuing after any
such amalgamation, consolidation or merger (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other disposition
is made (the "Surviving Entity"), is a corporation organized or existing
under the laws of Bermuda or the United States, any state thereof or the
District of Columbia;
(2) the Surviving Entity (if other than the Company) assumes all then
existing obligations of the Company under the Securities, the Exchange
Securities, this Indenture and the Registration Rights Agreement, pursuant
to agreements reasonably satisfactory to the Trustee;
(3) no Default or Event of Default (or an event that, with the
passing of time or giving of notice or both, would constitute an Event of
Default) is continuing or would occur immediately after giving effect to
such transactions;
(4) except in the case of the amalgamation, consolidation or merger
of the Company with or into a Wholly Owned Restricted Subsidiary, the
Company or the Surviving Entity will (A) immediately after such transaction
after giving pro forma effect thereto and to any related financing
transactions, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to clause (a)(1) or (a)(2) of Section 1010 and (B)
immediately after such transaction, have Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately
preceding the transaction; and
(5) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that, in the opinion of such officer or
counsel, such
73
amalgamation, consolidation, merger or transfer and such supplemental
indenture, if any, are permitted under this Indenture and that all
conditions precedent thereto, if any, have been satisfied.
(b) For purposes of this Section and Section 802, the transfer (by
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more of the Company's Subsidiaries (other than to the Company
or a Wholly Owned Restricted Subsidiary), the Company's interest in which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(c) Notwithstanding clauses (a) through (b), this Section shall not
apply to sales, assignments, transfers, conveyances and other dispositions of
telecommunications capacity made in the ordinary course of business by the
Company or a Restricted Subsidiary.
SECTION 802. Successor Substituted.
---------------------
Upon any amalgamation, consolidation or merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
801, the Surviving Entity 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 herein as the Company and
the Company shall be released from its obligations under the Securities and
under this Indenture, except with respect to any obligations that arise from, or
are related to, such transaction.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect
--------
the interests of the Holders in any material respect;
(2) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
74
(3) to evidence the succession of another Person to the Company and
to provide for the assumption of the Company's obligations to Holders of
Securities in the case of a merger, amalgamation or consolidation or sale
of all or substantially all of the Company's assets;
(4) to make any change that would provide any additional rights or
benefits to the Holders of Securities or that does not adversely affect the
legal rights under this Indenture of any such Holder;
(5) to add Guarantees with respect to the Securities;
(6) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture
Act; or
(7) to issue Additional Securities as provided in Section 301.
SECTION 902. Amendment, Supplement and Waiver with Consent of
------------------------------------------------
Holders.
-------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may amend or supplement the Securities, this
Indenture or any indenture supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such amendment, supplement,
-------- -------
modification or waiver shall, with respect to any Securities held by a non-
consenting Holder, without the consent of the Holder of each Outstanding
Security affected thereby:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Security or alter the provisions with respect to the redemption of the
Securities (other than related provisions within Section 1009 and Section
1012);
(3) reduce the rate of or change the time for payment of interest on
any Security;
(4) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Securities (except a rescission
of acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount of the Securities and a waiver of the payment
default that resulted from such acceleration);
(5) make any Security payable in currency other than that stated in
the Securities;
75
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of or premium, if any, or interest on the Securities;
(7) waive a redemption payment with respect to any Security (other
than a payment required by Section 1009 and Section 1012);
(8) cause the Securities to become subordinate in right of payment to
any other Indebtedness;
(9) make any change that would adversely affect the rights of the
Holders to receive Additional Amounts;
(10) modify the obligation of the Company to make a Change of Control
Offer at any time after the related Change of Control has occurred and the
Company has become obligated to make and consummate such Change of Control
Offer in accordance with Section 1009; or modify the obligation of the
Company to make an Asset Sale Offer at any time after the related Asset
Sale has been completed and the Company has become obligated to make and
consummate such Asset Sale Offer in accordance with Section 1012; or
(11) make any change in the preceding amendment and waiver provisions.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that, in the opinion of such officer or counsel, the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent thereof, if any, have been
satisfied. 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 and that all conditions precedent
thereto, if any, have been satisfied.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to the Article shall
conform 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 may, and shall if required by
the Trustee, bear a notation in form reasonably approved by the Trustee 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 the provisions of Section 902, 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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
---------------------------------------------------
The Company will 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 will 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 will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company
77
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 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 will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (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 will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, 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 will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) 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 (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
78
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 (or 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,
subject to any defenses to payment, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
-------- -------
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary; provided, however, that the Company shall not be required to
-------- -------
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all Taxes levied or imposed upon
the Company or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
-------- -------
required to pay or discharge or cause to be paid or discharged any such Tax or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
79
SECTION 1006. Maintenance of Properties.
-------------------------
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
-------- -------
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Statement by Officers As to Default.
-----------------------------------
(a) The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, 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 with all conditions and covenants
under this Indenture. 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) Within ten Business Days of any officer of the Company becoming
aware that any Default has occurred and is continuing under this Indenture, the
Company shall deliver to the Trustee by appropriate means an officers'
certificate specifying such Default.
SECTION 1008. Provision of Financial Statements.
---------------------------------
(a) For so long as any Initial Securities remain outstanding, the
Company will furnish without cost to the Holders the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, the Company shall furnish to the Holders and the Trustee
(and, following the filing of the Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, as contemplated by the Registration
Rights Agreement, will file with the Commission so long as permitted under the
Exchange Act and by the Commission) (i) within 90 days after the end of each
fiscal year, annual reports on Form 10-K (or any successor form), or within 120
days if on Form 20-F (or any successor form), containing the information
required to be contained therein (or required in such successor form) and (ii)
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, reports on Form 10-Q (or any successor form), or within 60 days if
on Form 6-K (or any successor form), which, regardless of applicable
requirements, shall, at a minimum, contain a "Management's Discussion and
Analysis of Financial Condition and Results of Operations".
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SECTION 1009. Purchase of Securities upon Change of Control.
---------------------------------------------
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require that the Company repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described herein (a "Change of Control Offer").
Pursuant to a Change of Control Offer, the Company shall offer to repurchase
Securities at a purchase price in cash equal to 101% of the aggregate principal
amount of Securities repurchased plus accrued and unpaid interest, if any,
thereon to the date of purchase (the "Change of Control Payment"). Within 30
days following any Change of Control, the Company shall mail a notice to each
Holder (with a copy to the Trustee) describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Securities on a
date specified in such notice (the "Change of Control Payment Date"), which date
shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed, pursuant to the procedures required by this Indenture and
described in such notice. The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Securities as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful:
(1) accept for payment all Securities or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Securities or portions thereof being purchased by the
Company.
(c) The Paying Agent will promptly mail to each Holder of Securities
so tendered the Change of Control Payment for such Securities, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Security equal in principal amount to any unpurchased
portion of the Securities surrendered, if any; provided that each such new
--------
Security will be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(d) The provisions of this Section that require the Company to make a
Change of Control Offer following a Change of Control shall be applicable
regardless of whether any other provisions of this Indenture are applicable.
Except as set forth in this Section, no Holder of Securities shall have any
right to require the Company to repurchase or redeem the Securities in the event
of takeover, recapitalization or other similar transaction.
81
(e) Notwithstanding clauses (a) through (d) of this Section, the
Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements of this Section and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance
-----------------------------------------------------
of Preferred Stock.
------------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, enter
into any guarantee of or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, incur), with respect to any
Indebtedness (including Acquired Debt), other than Permitted Indebtedness, and
the Company shall not issue any Disqualified Stock and shall not permit any of
its Restricted Subsidiaries to issue any Disqualified Stock or shares of
Preferred Stock, except, that the Company or any Guarantor may incur
Indebtedness (including Acquired Debt) and issue Disqualified Stock if either:
(1) the Consolidated Leverage Ratio of the Company is less than 5.5
to 1.0 (prior to July 15, 2002), or 5.0 to 1.0 (subsequent to July 15,
2002); or
(2) the Consolidated Capital Ratio of the Company is less than 2.5 to
1.0.
(b) Indebtedness, Disqualified Stock or Preferred Stock of any Person
which is outstanding at the time such Person becomes a Restricted Subsidiary of
the Company (including upon designation of any Subsidiary or other Person as a
Restricted Subsidiary) or is merged with or into or consolidated with the
Company or a Restricted Subsidiary of the Company shall be deemed to have been
incurred at the time such Person becomes such a Restricted Subsidiary of the
Company or is merged with or into or consolidated with the Company or a
Restricted Subsidiary of the Company, as applicable.
(c) For purposes of determining compliance with any restriction on
the incurrence of Indebtedness denominated in a currency other than U.S.
Dollars, the U.S. Dollar-equivalent principal amount of such Indebtedness
incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was incurred (or, in
the case of Indebtedness under a revolving credit facility, at the time of
commitment), provided that if such Indebtedness is incurred to refinance other
--------
Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such refinancing, such restriction shall
be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced. The principal amount of any Indebtedness incurred
to refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective Indebtedness
is denominated that is in effect on the date of such refinancing.
82
(d) For purposes of determining any particular amount of Indebtedness
under this Section, (1) guarantees, Liens or obligations with respect to letters
of credit or other similar instruments supporting Indebtedness otherwise
included in the determination of such particular amount shall not be included
and (2) any Liens granted pursuant to the equal and ratable provisions referred
to in the "Liens" covenant in Section 1013 shall not be treated as giving rise
to Indebtedness. For purposes of determining compliance with this Section, any
other obligations of the obligor on such Indebtedness arising under any Lien or
letter of credit or other similar instrument or obligation supporting such
Indebtedness shall be disregarded to the extent that the same secures the
principal amount of such Indebtedness.
(e) The accrual of interest or the accretion of accreted value will
not be deemed an incurrence of Indebtedness for the purposes of this Section.
SECTION 1011. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment unless at
the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence thereof; and
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to clause (1) or (2) of
Section 1010(a); and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments declared or made after the Issue Date
(excluding Restricted Payments permitted by clauses (2), (3), (4) and (6)
of paragraph (b) of this Section), is less than the sum, without
duplication, of
(i) the Applicable Percentage of the Consolidated Net Income
of the Company for the period (taken as one accounting period) from
the beginning of the first fiscal quarter commencing after the Issue
Date to the end of the Company's most recently ended fiscal quarter
for which internal financial statements are available at the time of
such Restricted Payment (or, if such aggregate cumulative Consolidated
Net Income is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the
Company since the Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock and other than the issuance of Equity
Interests in connection with the Private Equity Financing) or from the
issue or sale since the Issue Date of Disqualified Stock or debt
securities of the Company or a Restricted Subsidiary that have been
83
converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company), plus the aggregate net cash proceeds
received by the Company upon any such conversion or exchange, plus
(iii) 100% of the net reduction in Investments on and after the
Issue Date, resulting (A) from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of
property (but only to the extent such interest, dividends, repayments
or other transfers of property are not included in the calculation of
Consolidated Net Income), in each case to the Company or any of its
Restricted Subsidiaries from any Person (including, without
limitation, from Unrestricted Subsidiaries of the Company) or (B) from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries
(in each case, valued as provided in the definition of Investments),
in the case of each of (A) and (B) in this subsection not to exceed in
the case of any Person the amount of Restricted Investments previously
made by the Company or any of its Restricted Subsidiaries in such
Person (subsequent to the Issue Date) and in each such case which was
treated as a Restricted Payment (other than any such Restricted
Payment that was made pursuant to the provisions of clauses (b)(1)
through (b)(8) of this Section).
(b) Notwithstanding paragraph (a) of this Section, the following
Restricted Payments will not be prohibited:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at the declaration date such payment would have
complied with this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any Indebtedness of the Company subordinate to the
Securities or of any Equity Interests of the Company or any Restricted
Subsidiary in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized
--------
for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (a)(3)(ii) of this Section;
(3) the defeasance, redemption, retirement, repurchase or other
acquisition of any Indebtedness of the Company subordinate to the
Securities in exchange for, or with the net cash proceeds from an
incurrence of, Permitted Refinancing Indebtedness;
(4) Investments made out of an amount not exceeding the net cash
proceeds of one or more sales (other than to a Subsidiary of the Company)
of Equity Interests (other than Disqualified Stock) of the Company;
provided that the amount of any such net cash proceeds that are utilized
--------
for any such Investment shall be excluded from clause (a)(3)(ii) of this
Section;
84
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company pursuant to any management
equity subscription agreement or stock option agreement and the repurchase
of Equity Interests of the Company from employees, officers or directors of
the Company or any of its Restricted Subsidiaries or their authorized
representatives upon the death, disability or termination of employment of
such officers, directors and employees in an aggregate amount not to exceed
$2.0 million in any calendar year (provided that unused amounts may be
carried over to succeeding next 12 month periods, subject to a maximum of
$4.0 million);
(6) Investments to the extent payment for which consists of Equity
Interests (other than Disqualified Stock) of the Company;
(7) pro rata dividends or other distributions made by a Restricted
Subsidiary of the Company to minority stockholders (or owners of an
equivalent interest in the case of a Restricted Subsidiary that is not a
Corporation);
(8) the payment, purchase, redemption or other acquisition or
retirement of any Indebtedness of the Company that is expressly
subordinated in right of payment to the Securities at a purchase price not
greater than 101% of the principal amount thereof, together with accrued
interest, if any, thereon, in the event of a Change of Control, in
accordance with Section 1009; provided that prior to such purchase the
--------
Company has made the Change of Control Offer to all Holders of the
Securities as provided under such caption and has purchased all Securities
validly tendered for payment in connection with such Change of Control
Offer;
(9) the payment, purchase, redemption or other acquisition or
retirement out of any Excess Proceeds of any Indebtedness of the Company
that is expressly subordinated in right of payment to the Securities at a
purchase price not greater than 100% of the principal amount thereof
together with accrued interest, if any, thereon, in the event the Company
is required to make an Asset Sale Offer, in accordance with Section 1012;
provided that prior to such purchase the Company has made the Asset Sale
--------
Offer to all Holders of the Securities as provided under such Section 1012
and has purchased out of Excess Proceeds all Securities validly tendered
for payment in connection with such Asset Sale Offer; and
(10) other Restricted Payments in an aggregate amount not to exceed
$5.0 million;
provided, however, that except in the case of clause (b)(1), no Default or Event
-------- -------
of Default has occurred and is continuing or will occur as a consequence
thereof.
(c) The amount of all Restricted Payments (other than cash) shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to
85
be valued by this covenant shall be determined by the Board of Directors of the
Company whose resolution with respect thereto shall be delivered to the Trustee.
The Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $10.0 million. Not later than the date
of making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
SECTION 1012. Limitation on Certain Asset Sales.
---------------------------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value of the assets or Equity Interests issued or sold or
otherwise disposed of; and
(2) at least 75% of the consideration received by the Company or the
Restricted Subsidiary is in the form of cash and/or Cash Equivalents and/or
Fiber Optic Assets, provided that (x) the amount of any Indebtedness of the
--------
Company (other than Indebtedness that is expressly subordinated in right of
payment to the Securities) or any Restricted Subsidiary that is assumed by
the transferee of any such assets pursuant to an agreement that
unconditionally releases the Company and its Restricted Subsidiaries from
further liability related to such Indebtedness, and (y) liabilities other
than Indebtedness for which any other Person assumes responsibility, shall
in each case be treated as cash for purposes of this Section.
(b) Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or the Restricted Subsidiary may apply the Net Proceeds:
(1) to permanently reduce commitments under the New Credit Facility
or to permanently repay or retire outstanding Indebtedness incurred
pursuant to clause (1) of the definition of "Permitted Indebtedness", or
(2) to acquire Fiber Optic Assets.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute Excess Proceeds.
When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
shall make an offer (an "Asset Sale Offer") to all Holders of Securities and may
make an offer to all holders of other
86
Indebtedness that is pari passu with the Securities containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets, to purchase the maximum
principal amount of Securities and such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of principal amount plus accrued and unpaid interest, if
any, thereon to the date of purchase and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
such Excess Proceeds for any purpose not otherwise prohibited by this Indenture.
If the aggregate principal amount of Securities and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Securities and such other pari passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Fair Market Value of any assets or securities that are
required to be valued by this Section shall be determined by the Board of
Directors of the Company whose resolution with respect thereto shall be
delivered to the Trustee. The Board of Directors' determination must be based
upon an opinion or appraisal issued by an accounting, appraisal or investment
banking firm of national standing if the Fair Market Value of such assets or
securities (excluding any Fiber Optic Assets) exceeds $10.0 million.
SECTION 1013. Restrictions on Liens.
---------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind on any asset
or property now owned or hereafter acquired, except Permitted Liens, unless the
Securities are secured equally and ratably with the obligation so secured, so
long as such obligation is so secured.
SECTION 1014. Dividends and Other Payment Restrictions Affecting
--------------------------------------------------
Restricted Subsidiaries.
-----------------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Company or any of the Company's Restricted Subsidiaries, or
with respect to any other interest or participation in, or measured by, its
profits, or pay any indebtedness owed to the Company or any of the
Company's Restricted Subsidiaries;
(2) make loans or advances to the Company or any of the Company's
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of
the Company's Restricted Subsidiaries.
87
(b) However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness or other agreements as in effect on the
Issue Date and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements, renewals,
--------
increases, supplements, refundings, replacement or refinancings are not
materially more restrictive, taken as a whole, with respect to such
encumbrances and restrictions than those contained in such Existing
Indebtedness, as in effect on the Issue Date;
(2) this Indenture, the Securities and the Exchange Securities;
(3) the New Credit Facility, as in effect on the date of its
execution and as may be modified in accordance with the provisions of the
commitment letter relating to the New Credit Facility permitting certain
changes in connection with syndication, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
--------
restatements, renewals, increases, supplements, refundings, replacement or
refinancings are not materially more restrictive, taken as a whole, with
respect to such encumbrances and restrictions than those contained in the
New Credit Facility, as in effect on the date of its execution and as
modified in the manner described above;
(4) applicable law or any governmental or regulatory permit or
license;
(5) any instrument governing Indebtedness or Capital Stock of, or
agreement binding on, a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in connection with or
in contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was
--------
permitted to be incurred by the terms of this Indenture;
(6) customary non-assignment provisions restricting subletting or
assignment in leases or other agreements entered into in the ordinary
course of business and consistent with past practices, if any;
(7) Purchase Money Indebtedness or Vendor Financing Indebtedness that
imposes restrictions of the nature described in clause (a)(3) of this
Section, provided that such obligations are permitted to be incurred under
--------
clause (6) or clause (7), as the case may be, of the definition of
"Permitted Indebtedness" in this Indenture;
(8) any agreement for the sale or other disposition of a Restricted
Subsidiary or any asset that restricts distributions by such Restricted
Subsidiary or transfer of such
88
asset pending its sale or other disposition, 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 not consummated and
that the consummation or abandonment of such transaction occurs within one
year of the date such agreement was entered into;
(9) Permitted Refinancing Indebtedness, provided that the
--------
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced;
(10) Liens otherwise permitted to be incurred pursuant to Section 1013
that limit the right of the Company or any of its Restricted Subsidiaries
to dispose of the assets subject to such Lien;
(11) customary limitations on the disposition or distribution of
assets or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business; and
(12) any encumbrance or restriction under any agreement relating to
Indebtedness incurred by a Restricted Subsidiary of the Company permitted
to be incurred under Section 1010; provided that the Company in good faith
--------
determines (a) that, taken as a whole, the terms and conditions of any such
encumbrances or restrictions are not materially less favorable to the
Holders than those in the New Credit Facility, and (b) that any such
encumbrance or restriction will not prevent such Restricted Subsidiary from
making dividends, distributions, loans or advances to the Company in
amounts sufficient for the Company, together with amounts otherwise
available to the Company, to make mandatory payments of principal, premium,
if any, and interest and any Additional Amounts pursuant to the terms of
the Securities and this Indenture and pursuant to the terms of any other
Indebtedness of the Company.
SECTION 1015. Transactions with Affiliates.
----------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties, assets or securities to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliated Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with a Person that is not an Affiliate; and
(2) the Company delivers to the Trustee:
89
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; provided that if there are no
--------
disinterested members of the Board of Directors, the Company shall
deliver an opinion as to the fairness to the Company of such Affiliate
Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion as to the fairness to the Company
of such Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of national
standing.
The following items will not be subject to the provisions of the prior
paragraph:
(1) (a) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan, program
or arrangement, related trust agreement or any other similar arrangement
for or with any employee, officer or director heretofore or hereafter
entered into in the ordinary course of business, including vacation,
health, insurance, deferred compensation, retirement, savings or other
similar plans, (b) the payment of compensation, performance of
indemnification or contribution obligations, or an issuance, grant or award
of stock, options or other equity-related interests or other securities, to
employees, officers or directors in the ordinary course of business or (c)
any transaction with an officer or director in the ordinary course of
business not involving more than $100,000 in any one case;
(2) Affiliate Transactions in effect or approved by the Board of
Directors of the Company on or before the date of this Indenture, including
any amendments hereto (provided that the terms of such amendments are not
--------
materially less favorable to the Company than the terms of such agreement
prior to such amendment);
(3) transactions between or among the Company and any of the
Company's Restricted Subsidiaries;
(4) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company;
(5) any transaction consistent with commercially reasonable
practices, and approved by a majority of the disinterested members of the
Board of Directors of the Company; and
90
(6) Permitted Investments or Restricted Payments that are permitted
by Section 1011.
SECTION 1016. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
--------
the Company or any of its Restricted Subsidiaries may enter into a sale and
leaseback transaction if:
(1) the Company (or such Restricted Subsidiary, as the case may be)
could have:
(a) incurred indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction pursuant to
either of the Consolidated Leverage Ratio or Consolidated Capital
Ratio tests set forth in Section 1010(a); and
(b) incurred a Lien to secure such Indebtedness pursuant to
Section 1013;
(2) the gross cash proceeds of such sale and leaseback transaction
are at least equal to the Fair Market Value (as determined in good faith by
the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee) of the property that is the subject
of such sale and leaseback transaction; and
(3) the transfer of assets in such sale and leaseback transaction is
treated as an Asset Sale, and the Company applies the proceeds of such
transaction in compliance with Section 1012.
SECTION 1017. Limitation on Issuances and Sales of Equity Interests
-----------------------------------------------------
in Restricted Subsidiaries.
--------------------------
The Company:
(1) shall not, and shall not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Restricted Subsidiary of the Company to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the
Company), unless:
(a) such transfer, conveyance, sale, lease or other disposition
is of all the Equity Interests in such Restricted Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section
1012; and
91
(2) will not permit any Restricted Subsidiary of the Company to issue
any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company (except in a transaction that complies with (1) of this Section);
provided, however, that this Section does not prevent any sale or issuance of
-------- -------
Equity Interests of a Restricted Subsidiary, and the ownership by any Person of
such Equity Interests, where such Subsidiary following such sale or issuance
becomes a Fiber Optic Joint Venture, and any Investment in such Restricted
Subsidiary remaining after giving effect to such sale or issuance would have
been permitted to be made under any one or more of the clauses (1) through (3)
of Section 1011(a), clause (b)(10) of Section 1011 or under clause (7) of the
definition of "Permitted Investments", and the proceeds of such sale or issuance
are applied in compliance with Section 1012.
SECTION 1018. Limitation on Future Guarantees.
-------------------------------
(a) The Company shall not permit any Restricted Subsidiary, directly
or indirectly, to guarantee any Indebtedness of the Company that is pari passu
with or subordinated to the Securities, unless (1) such Restricted Subsidiary
previously has provided a Guarantee and (2) such Restricted Subsidiary waives,
and will not in any manner whatsoever claim or take the benefit or advantage of,
any rights of reimbursement, indemnity or subrogation or any other rights
against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee, until payment in full
of the outstanding principal amount of the Securities and any premium or accrued
and unpaid interest thereon then due and owing; provided that this paragraph
--------
shall not be applicable to any guarantee of any Restricted Subsidiary (a) that
existed at the time such Person became a Restricted Subsidiary and was not
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or (b) of Indebtedness incurred pursuant to clause (1) of
the definition of "Permitted Indebtedness. If the guaranteed Indebtedness is
(1) pari passu with the Securities, then the guarantee of such guaranteed
Indebtedness shall be pari passu with, or subordinated to, the Guarantee, or (2)
subordinated to the Securities, then the guarantee of such guaranteed
Indebtedness shall be subordinated to the Guarantee, at least to the extent that
the guaranteed Indebtedness is subordinated to the Securities.
(b) Any Guarantee will include provisions applicable to the Guarantor
substantially similar to those in Section 1022 and Article Eight.
Notwithstanding the foregoing, any Guarantee by any Restricted Subsidiary may
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (and corresponding provisions to those in Article Eight will
not be applicable in the event of) (1) any sale, exchange or transfer (including
by way of merger or consolidation), to any Person not an Affiliate of the
Company, of all of the Company's and each Restricted Subsidiary's Capital Stock
in, or all or substantially all the assets of, such Restricted Subsidiary (which
sale, exchange, transfer, or other transaction is not prohibited by the
Indenture), (2) the legal or covenant defeasance of the Securities or
satisfaction and discharge of this Indenture, subject to customary contingent
reinstatement
92
provisions, (3) the release or discharge of the guarantee, assumption or other
incurrence of liability that resulted in the creation of such Guarantee, except
a discharge or release by or as a result of payment under such Guarantee or (4)
the merger or consolidation of such Restricted Subsidiary with and into the
Company or another Subsidiary Guarantor that is the surviving Person in such
merger or consolidation.
(c) Each Guarantee will be limited to the maximum amount that can be
Guaranteed by such Restricted Subsidiary under applicable law without rendering
the Guarantee voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 1019. Limitation on Business Activities
---------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business.
SECTION 1020. Limitation on Unrestricted Subsidiaries.
---------------------------------------
(a) The Board of Directors of the Company may designate, pursuant to
a Board Resolution, any Subsidiary (including any newly acquired or newly formed
Subsidiary) of the Company (other than Atlantica Network (Bermuda) Ltd.) to be
an Unrestricted Subsidiary so long as such Subsidiary has no Indebtedness other
than Non-Recourse Debt.
(b) If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary so designated
will be deemed to be an Investment made as of the time of such designation and
that designation will only be permitted if such Investment would be permitted at
that time.
(c) Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with clauses (a)
and (b) of this Section.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary, provided that:
--------
(1) no Default or Event of Default has occurred and is continuing
following such designation, and
(2) the Company could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 1010(a) (treating
any Indebtedness of such Unrestricted Subsidiary as the incurrence of
Indebtedness by a Restricted Subsidiary).
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Such redesignation will increase the amount available for Restricted
Payments under Section 1011 as provided therein or Permitted Investments, as
applicable.
SECTION 1021. Limitation on Payments for Consent.
----------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Securities for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Securities unless such consideration is offered to be paid and is paid to all
Holders of the Securities that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
SECTION 1022. Payments of Additional Amounts.
------------------------------
(a) All payments made by or on behalf of the Company on or with
respect to the Securities shall be made free and clear of and without
withholding of or deduction for or on account of any present or future Taxes
imposed or levied by or on behalf of any jurisdiction or any political
subdivision thereof or by any authority or agency therein or thereof having
power to tax, unless the withholding or deduction of such Taxes is required by
law.
(b) If the Company or any other payor shall at any time be required
to withhold or deduct any amount on account of Taxes from any payment made on or
with respect to the Securities, the Company or such other payor shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant
government authority in accordance with applicable law;
(3) pay to each Holder of Securities such additional amounts
("Additional Amount") as may be necessary so that the net amount received
by each Holder after such withholding or deduction (including in respect of
Additional Amounts) shall not be less than the amount the Holder would have
received if such Taxes had not been required to be so withheld or deducted;
(4) furnish to the Holders, within 30 days after the date the payment
of any such Taxes is due, upon request, certified copies of tax receipts
evidencing such payment by the Company or such other payor;
(5) indemnify and hold harmless each Holder (other than an Excluded
Holder) from (A) any Taxes paid by such Holder as a result of payments made
on or with respect to the Securities, (B) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto
and (C) any Taxes imposed with respect to any reimbursement under (A) or
(B), but excluding any such taxes described in (c)(i)(A) of this Section
and
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(6) at least 30 days prior to each date on which any Additional
Amounts are payable, the Company will deliver to Paying Agent (if not the
Company) an Officers' Certificate stating the amounts so payable and such
other information necessary to enable the Paying Agent to pay such
Additional Amounts to Holders on the payment date.
(c) Notwithstanding clauses (a) and (b) of this Section 1022, the
Company or a successor corporation shall not be required to make any payment to
a Holder of Additional Amounts for or on account of:
(i) Any Tax that would not have been imposed but for (A) the
existence of any present or former connection between such Holder (an
"Excluded Holder") (or between a fiduciary, settlor, beneficiary or partner
of, or possessor of a power over such Holder, if such Holder is an estate,
trust or partnership) and the taxing jurisdiction or any political
subdivision or territory or possession thereof or area subject to its
jurisdiction (other than the holding of a Security or the receipt of
payments or exercise of rights thereunder), including, without limitation,
such Holder (or such fiduciary, settlor, beneficiary, partner or possessor)
being or having been a citizen or resident thereof or being or having been
present or engaged in a trade or business therein or having or having had
permanent establishment therein, (B) the presentation of a Security (where
presentation is required) for payment on a date more than 30 days after (x)
the date on which such payment became due and payable or (y) the date on
which payment thereof is duly provided for, whichever occurs later (except
to the extent that the Holder of such Security would have been entitled to
Additional Amounts in respect of such Taxes on presenting such Security for
payment on any date prior to such date), or (c) the presentation of a
Security for payment in Bermuda or any political subdivision thereof or
therein, unless such Security could not have been presented for payment
elsewhere;
(ii) Except as otherwise provided, any estate, inheritance, gift,
sales, transfer, personal property or similar Tax;
(iii) Any Tax that is imposed or withheld by reason of the failure by
the Holder or the beneficial owner of the Security to comply with a written
request of the Company addressed to the Holder and made at least 60 days
prior to the first payment date with respect to which the Company or any
successor corporation shall apply this clause (iii), (A) to provide
information, documents or other evidence concerning the nationality,
residence or identity of the Holder or such beneficial owner or (B) to make
and deliver any declaration or other similar claim (other than a claim for
refund of a tax, assessment or other governmental charge withheld by the
Company) or satisfy any information or reporting requirements, which, in
the case of (A) or (B), shall at any time be required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge, provided, however, that the
-------- -------
limitations on the Company's or any successor corporations' obligation to
pay Additional Amounts set forth in clauses (A) and (B) above shall not
apply if the provision of information, documentation, declaration or other
evidence or reporting described in such clauses (A) and (B) would be
materially
95
more onerous, in form, in procedure or in the substance of information
disclosed, to a Holder or beneficial owner of a Security than comparable
information or other information or other applicable reporting requirements
imposed or provided for under United States tax law (such as Internal
Revenue Service Form 1001 or W-8BEN); or
(iv) Any combination of items (i), (ii) and (iii) above.
(d) All references in this Indenture, in any context, to the
payment of principal, premium, if any, Redemption Price, Change of Control
Payment, offer price and interest, or any other amount payable under or with
respect to any Security shall be deemed to include the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
SECTION 1023. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1007 through 1021, inclusive,
if before or after the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
-------------------
The Securities may be redeemed, at the election of the Company, as a
whole or from time to time in part, at any time on or after July 15, 2004,
subject to the conditions and at the Redemption Prices specified in the form of
Security, together with accrued interest to the Redemption Date. In addition,
up to 35% of the aggregate principal amount of the Securities originally issued
under this Indenture may be redeemed, at the election of the Company, as a whole
or from time to time in part, at any time prior to July 15, 2002, subject to the
conditions and at a redemption price specified in the form of Security, together
with accrued interest to the Redemption Date. The Securities are also subject
to redemption, in whole but not in part, at 100% of the principal amount in the
event the Company becomes obligated to pay Additional Amounts in respect of the
Securities.
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SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 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. In case of any
redemption at the election of the Company, 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.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
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, 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.
All notices of redemption shall state:
(1) the Redemption Date,
97
(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 redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state 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 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 interest thereon will cease to accrue on
and after said date, and
(6) the place or places where such Securities are to be 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.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and accrued interest on, all
the Securities which are to be redeemed on that date.
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 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) 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 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.
98
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 (pursuant to the
provisions of this Article) 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, upon the cancellation of such surrendered Security,
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, and in the name of such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Legal 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. Legal Defeasance.
----------------
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and any Guarantor shall be deemed
to have been discharged from their respective obligations with respect to all
Outstanding Securities on the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding 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 (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 rights of Holders of Outstanding Securities to receive,
solely from the trust fund described in Section 1204 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any,
on) and interest on such Securities when such payments are due, (B) the
99
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, (D) this Section 1202 and (E) the Company's obligations to
pay Additional Amounts. 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.
SECTION 1203. Covenant Defeasance.
-------------------
Upon the Companys exercise under Section 1201 of the option applicable
to this Section 1203, the Company and any Guarantor shall be released from their
obligations under any covenant contained in Section 801(a)(4) and in Sections
1007 through 1021 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 such covenant, including any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the 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 covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document, and such omission to comply shall not constitute a
Default or an Event of Default, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Legal 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 607 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, (A)
cash in U.S. Dollars in an amount, or (B) non-callable Government
Securities which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (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, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
the principal of (and premium, if any) 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 shall have been irrevocably instructed to
100
apply such money or the proceeds of such Government Securities to said
payments with respect to the Securities and any such other amounts due the
Trustee under Section 606. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 1103 hereof, a notice of its
election to redeem all of the Outstanding Securities at a future date in
accordance with Article Eleven hereof, 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 (other
than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) or, insofar as paragraphs (9), (10) and (11) of
Section 501 hereof are concerned, at any time during the period ending on
the 91st 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 Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under any material
agreement or instrument (other than the Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound.
(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel confirming that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the Issue Date, 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
United States federal income tax purposes as a result of such Legal
Defeasance and will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred and the Company shall
have delivered to the Trustee an Opinion of Counsel in Bermuda reasonably
acceptable to the Trustee confirming that the Holders of the outstanding
Securities will not recognize income, gain or loss for Bermuda tax purposes
as a result of such Legal Defeasance and will be subject to Bermuda tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred.
(5) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that the Holders of the Outstanding Securities
will not recognize income, gain or loss for United States federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
United States 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 and the Company shall have delivered to the
Trustee an Opinion of Counsel in Bermuda reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Securities will not
recognize income, gain or loss for
101
Bermuda tax purposes as a result of such Covenant Defeasance and will be
subject to Bermuda 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 Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(7) the Company shall deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Securities over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in the case of the Officers'
Certificate, stating that all conditions precedent relating to either the
Legal Defeasance under Section 1202 or the Covenant Defeasance under
Section 1203 (as the case may be) have been complied with and, in the case
of the Opinion of Counsel, that all conditions precedent providing for
Legal Defeasance or Covenant Defeasance have been complied with.
SECTION 1205. Deposited Money and U.S. Government Securities to Be
----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 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 (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Securities
deposited pursuant to Section 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 U.S. 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
102
required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
SECTION 1206. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 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 obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 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 with
Section 1205; provided, however, that if the Company makes any payment of
-------- -------
principal of (or premium, if any) or interest on any Security following the
reinstatement of its obligations, the Company 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.
103
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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.
GLOBENET COMMUNICATIONS
GROUP LIMITED
[SEAL] By /s/ XXX XXXXXXXXX
___________________________________
Title: Vice President and Secretary
Attest: /s/ XXXX XXXXXXX
_______________________________
Title: Chief Financial Officer
BANKERS TRUST COMPANY, Trustee
[SEAL] By /s/ XXXXXX X. XXXXXXX
_________________________________
Title: Assistant Vice President
Attest: /s/ XXXX XXXXXXX
_______________________________
Title: Assistant Vice President
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EXHIBIT A-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL ADDITIONAL SECURITY TO
UNRESTRICTED GLOBAL ADDITIONAL SECURITY
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Re: 13% Senior Notes due July 15, 2007 of GlobeNet Communications Group
Limited
Reference is hereby made to the Indenture, dated as of July 14, 1999,
between GlobeNet Communications Group Limited, as issuer (the "Company"), and
Bankers Trust Company, as trustee (the "Indenture"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $_______ principal amount of Securities which
are evidenced by a Restricted Global Security (CUSIP No. __________) and held
with the Depositary in the name of ____________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by an Unrestricted Global Security
(CUSIP No. __________).
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed and believes that the transferee was
outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a
buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(B) If the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144 under
the Securities Act.
Upon giving effect to this request to exchange a beneficial interest
in such Restricted Global Security for a beneficial interest in such
Unrestricted Global Security, the resulting beneficial interest shall be subject
to the restrictions on transfer applicable to such Unrestricted Global Security,
if any, pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
_______________________________________
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: ____________, ____
2
EXHIBIT A-2
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Re: 13% Senior Notes due July 15, 2007 of GlobeNet Communications Group
Limited
Reference is hereby made to the Indenture, dated as of July 14, 1999,
between GlobeNet Communications Group Limited, as issuer (the "Company"), and
Bankers Trust Company, as trustee (the "Indenture"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
[For transfers: This letter relates to $____________ principal
amount of Securities which are evidenced by a Restricted Global Security (CUSIP
No. ____________) and held with the Depositary in the name of
______________________ [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by an
Unrestricted Global Security (CUSIP No. ____________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that upon such transfer, (a) a period of at
least two years will have elapsed since [__________, _____], (b) the Beneficial
Owner during the three months preceding the date of such transfer was not an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to whom
such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $_______________ principal
amount of Securities that are evidenced by a Restricted Global Security (CUSIP
No. __________) and held with the Depositary in the name of [__________________]
[and held for the benefit of ______________] (the "Beneficial Owner"). The
Beneficial Owner has requested that its beneficial interest in such Securities
be exchanged for a beneficial interest in an equal principal amount of
Securities evidenced by an Unrestricted Global Security (CUSIP No.
___________________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that, upon such exchange, (a) it will be
the beneficial owner of such Securities, (b) a period of at least two years will
have elapsed since [_________, _____] and (c) the Beneficial Owner will not be,
and during the three months preceding the date of such
exchange will not have been, an "affiliate" of the Company (as defined in Rule
144 under the Securities Act), and it is not acting on behalf of such an
affiliate.]
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By: ____________________________________
Name:
Title:
A-2-2
