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EXHIBIT 10.59
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XXXXXXXX COMMUNICATIONS GROUP, INC.
AND
The Bank of New York, Trustee
Indenture
Dated as of [ ], 1999
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$[ ]
[ ]% Senior Notes Due 200_
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................................11
SECTION 1.02. Other Definitions...............................................................45
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF NOTES
SECTION 2.01. Authentication and Delivery of Notes............................................46
SECTION 2.02. Execution of Notes..............................................................46
SECTION 2.03. Certificate of Authentication...................................................47
SECTION 2.04. Form, Denomination and Date of Notes; Payments of Interest......................47
SECTION 2.05. Global Note Legends.............................................................48
SECTION 2.06. Registration, Transfer and Exchange.............................................48
SECTION 2.07. Book-Entry Provisions for Global Notes..........................................50
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost and Stolen Notes............................51
SECTION 2.09. Cancellation of Notes...........................................................52
SECTION 2.10. Temporary Notes.................................................................52
SECTION 2.11. CUSIP Numbers...................................................................52
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE
SECTION 3.01. Payment of Principal and Interest...............................................53
SECTION 3.02. Offices for Payments, etc.......................................................53
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee..............................53
SECTION 3.04. Paying Agents...................................................................53
SECTION 3.05. Certificates to Trustee.........................................................54
SECTION 3.06. Noteholders' Lists..............................................................55
SECTION 3.07. Reports by the Trustee..........................................................55
SECTION 3.08. Limitation on Consolidated Debt.................................................56
SECTION 3.09. Limitation on Debt of Restricted Subsidiaries...................................63
SECTION 3.10. Limitation on Issuances of Guarantees by, and Debt
Securities of, Domestic Restricted Subsidiaries.......................................65
SECTION 3.11. Limitation on Restricted Payments...............................................66
SECTION 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.....................................................71
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SECTION 3.13. Limitation on Liens.............................................................73
SECTION 3.14. Limitation on Sale and Leaseback Transactions...................................75
SECTION 3.15. Limitation on Asset Dispositions................................................76
SECTION 3.16. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries...............................................................77
SECTION 3.17. Limitation on Transactions with Affiliates......................................79
SECTION 3.18. Repurchase of Notes Upon Change of Control Triggering
Event.................................................................................81
SECTION 3.19. Reports.........................................................................83
SECTION 3.20. Limitation on Designations of Unrestricted Subsidiaries.........................84
SECTION 3.21. Existence.......................................................................86
SECTION 3.22. Payment of Taxes and Other Claims...............................................86
SECTION 3.23. Maintenance of Properties and Insurance.........................................87
SECTION 3.24. Waiver of Stay, Extension or Usury Laws.........................................87
ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Events of Default...............................................................88
SECTION 4.02. Acceleration....................................................................89
SECTION 4.03. Other Remedies..................................................................90
SECTION 4.04. Waiver of Past Defaults.........................................................90
SECTION 4.05. Control by Majority.............................................................90
SECTION 4.06. Limitation on Suits.............................................................91
SECTION 4.07. Rights of Holders to Receive Payment............................................91
SECTION 4.08. Collection Suit by Trustee......................................................91
SECTION 4.09. Trustee May File Proofs of Claim................................................92
SECTION 4.10. Priorities......................................................................92
SECTION 4.11. Undertaking for Costs...........................................................93
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default......................................................................93
SECTION 5.02. Certain Rights of the Trustee...................................................94
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of Notes
or Application of Proceeds Thereof....................................................95
SECTION 5.04. Trustee and Agents May Hold Notes; Collections, etc.............................95
SECTION 5.05. Moneys Held by Trustee..........................................................96
SECTION 5.06. Notice of Default...............................................................96
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SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior Claim.................96
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, etc..........................97
SECTION 5.09. Persons Eligible for Appointment as Trustee.....................................97
SECTION 5.10. Resignation and Removal; Appointment of Successor Trustee......................97
SECTION 5.11. Acceptance of Appointment by Successor Trustee..................................99
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business of Trustee..........99
SECTION 5.13. Preferential Collection of Claims..............................................100
ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders............................................101
SECTION 6.02. Proof of Execution of Instruments and of Holding of Notes; Record Date.........101
SECTION 6.03. Notes Owned by Company Deemed Not Outstanding..................................101
SECTION 6.04. Right of Revocation of Action Taken............................................102
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders.............................102
SECTION 7.02. Supplemental Indentures With Consent of Holders................................104
SECTION 7.03. Effect of Supplemental Indenture...............................................105
SECTION 7.04. Documents to Be Given to Trustee; Compliance with TIA..........................106
SECTION 7.05. Notation on Notes in Respect of Supplemental Indentures........................106
ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. Consolidation, Merger or Sale of Assets........................................106
SECTION 8.02. Successor Corporation Substituted..............................................107
SECTION 8.03. Opinion of Counsel to Trustee..................................................108
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ARTICLE 9
REDEMPTION OF NOTES
SECTION 9.01. Right of Optional Redemption; Prices...........................................108
SECTION 9.02. Notice of Redemption; Partial Redemptions......................................109
SECTION 9.03. Payment of Notes Called for Redemption.........................................110
SECTION 9.04. Exclusion of Certain Notes from Eligibility for Selection
for Redemption.......................................................................111
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 10.01. Company's Option to Effect Defeasance or Covenant
Defeasance...........................................................................111
SECTION 10.02. Legal Defeasance and Discharge................................................111
SECTION 10.03. Covenant Defeasance...........................................................112
SECTION 10.04. Conditions to Legal or Covenant Defeasance....................................112
SECTION 10.05. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions.............................................114
SECTION 10.06. Repayment to Company..........................................................114
SECTION 10.07. Reinstatement.................................................................115
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers, Directors,
Employees and Controlling Persons of Company Exempt from
Individual Liability.................................................................115
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders..............................................................................116
SECTION 11.03. Successors and Assigns of Company Bound by Indenture..........................116
SECTION 11.04. Notices and Demands on Company, Trustee and Holders...........................116
SECTION 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................................................117
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays...............................118
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939................................................................118
SECTION 11.08. New York Law to Govern........................................................118
SECTION 11.09. Counterparts..................................................................118
SECTION 11.10. Effect of Headings............................................................118
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INDENTURE, dated as of [ ] between Xxxxxxxx Communications Group,
Inc., a Delaware corporation (the "COMPANY"), and The Bank of New York, a New
York banking corporation (the "TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issuance of its [ ]%
Senior Notes Due 200_ (the "NOTES") and, to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes and the Trustee's certificate of authentication
shall be in substantially the following form:
[FORM OF FACE OF NOTE]
No. $
[CUSIP]
Xxxxxxxx Communications Group, Inc.
[ ]% Senior Note Due 200_
Xxxxxxxx Communications Group, Inc., a Delaware corporation (the
"COMPANY"), for value received hereby promises to pay to [ ] or registered
assigns the principal sum of [ ] Dollars at the Company's office or agency
for said purpose in The City of New York, on [ ], 200_, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semi-annually on[ ] and [ ] (each an "INTEREST PAYMENT DATE") of
each year, commencing with [ ], on said principal sum in like coin or
currency at the rate per annum set forth above at said office or agency from
the most recent Interest Payment Date to which interest on the Notes has been
paid or duly provided for, unless the date hereof is a date to which interest
on the Notes has been paid or duly provided for, in which case from the date of
this Note, or, if no interest on the Notes has been paid or duly provided for,
from [ ], 1999. Notwithstanding the foregoing, if the date hereof is
after [ ] or [ ] (each a "REGULAR RECORD DATE"), as the case may
be, and before the immediately following Interest Payment Date, this Note shall
bear interest from such Interest Payment Date; provided, that if the Company
shall default in the payment of interest due on such Interest Payment Date then
this Note shall bear interest from the next preceding Interest Payment Date to
which
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interest on the Notes has been paid or duly provided for. The interest so
payable on any Interest Payment Date will, except as otherwise provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose name
this Note is registered at the close of business on the Regular Record Date
preceding such Interest Payment Date whether or not such day is a business day;
provided that interest may be paid, at the option of the Company, by mailing a
check therefor payable to the registered Holder entitled thereto at such
Holder's last address as it appears on the Note register or by wire transfer, in
immediately available funds, to such bank or other entity in the continental
United States as shall be designated in writing by such Holder prior to the
relevant Regular Record Date and shall have appropriate facilities for such
purpose, or in accordance with the standard operating procedures of the
Depositary (as defined in the Indenture).
Interest, other than default interest, on the Notes will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By:
----------------------------------------
Name:
Title:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
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This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
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Authorized Signatory
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[FORM OF REVERSE OF NOTE]
Xxxxxxxx Communications Group, Inc.
[ ]% Senior Note Due 200_
This Note is one of a duly authorized issue of debt securities of the
Company, limited to the aggregate principal amount of $[ ], issued or to be
issued pursuant to an indenture dated as of [ ], 1999 (the "INDENTURE"), duly
executed and delivered by the Company to The Bank of New York, as Trustee
(herein called the "TRUSTEE"). Reference is hereby made to the Indenture and all
indentures supplemental thereto for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the registered
holders or registered holder) of the Notes.
This Note will bear interest until final maturity at a rate per annum
shown above. The Company will pay interest on overdue principal of, premium, if
any, and to the extent lawful, interest on overdue installments of interest, at
an [ ]% rate per annum based on a 360-day year consisting of twelve 30-day
months.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all the Notes may be declared due
and payable, in the manner and with the effect, and subject to the conditions,
provided in the Indenture. The Indenture provides that in certain events such
declaration and its consequences may be waived by the Holders of a majority in
aggregate principal amount of the Notes then outstanding and that, prior to any
such declaration, such Holders may waive any past default under the Indenture
and its consequences except a default in the payment of principal of, premium,
if any, or interest on any of the Notes or in respect of a covenant or provision
of the Indenture that cannot be modified or amended without the consent of the
holder of each outstanding Note affected. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and any Note which may be issued in exchange or substitution
herefor, whether or not any notation thereof is made upon this Note or such
other Notes.
The Indenture permits the Company and the Trustee, with the consent of
the Holders of not less than a majority in principal amount of the Notes at the
time outstanding, evidenced as in the Indenture provided, to enter into one or
more indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the Holders; provided
that no such
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supplemental indenture shall, without the consent of the Holder of each
outstanding Note: (1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount thereof or
the interest thereon that would be due and payable upon the Stated Maturity
thereof, or change the place of payment where, or the coin or currency in which,
any Note or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof; (2) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is necessary for any such
supplemental indenture or required for any waiver of compliance with certain
provisions of the Indenture or certain Defaults thereunder; (3) subordinate in
right of payment, or otherwise subordinate, the Notes to any other Debt; (4)
except as otherwise required by the Indenture, release any security interest
that may have been granted in favor of the Holders of the Notes; (5) reduce the
premium payable upon the redemption of any Note nor change the time at which any
Note may be redeemed, as described in the Indenture; (6) reduce the premium
payable upon a Change of Control Triggering Event; (7) make any change in any
Domestic Restricted Subsidiary Guarantee that would adversely affect the Holders
of the Notes; or (8) modify any provision of this paragraph (except to increase
any percentage set forth herein).
Notwithstanding the foregoing, without the consent of any Holder of
Notes, the Company and the Trustee may, at any time and from time to time,
without notice to or consent of any Holders of Notes, enter into one or more
indentures supplemental to the Indenture: (1) to evidence the succession of
another Person to the Company and the assumption by such successor of the
covenants of the Company in the Indenture and the Notes; (2) to add to the
covenants of the Company, for the benefit of the Holders, or to surrender any
right or power conferred upon the Company by the Indenture; (3) to add any
additional Events of Default; (4) to provide for uncertificated Notes in
addition to or in place of certificated Notes; (5) to evidence and provide for
the acceptance of appointment under the Indenture of a successor trustee; (6) to
secure the Notes; (7) to comply with the Trust Indenture Act of 1939; (8) to add
additional Guarantees with respect to the Notes or to release Guarantors from
Domestic Restricted Subsidiary Guarantees as provided by the terms of the
Indenture; or (9) to cure any ambiguity in the Indenture, to correct or
supplement any provision in the Indenture which may be inconsistent with any
other provision therein or to add any other provision with respect to matters or
questions arising under the Indenture; provided such actions shall not adversely
affect the interests of the Holders in any material respect.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute
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and unconditional, to pay the principal of, premium, if any, and interest on
this Note at the place, times, and rate, and in the currency, herein prescribed.
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Company referred to on the face hereof
and in the manner and subject to the limitations provided in the Indenture,
Notes may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company, a new Note or Notes of
authorized denominations, for a like aggregate principal amount, will be issued
to the transferee as provided in the Indenture. No service charge shall be made
for any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other similar governmental charge that may be imposed in
connection therewith.
Prior to ____, 200_, the Company may redeem all or part of the Notes at
any time upon not less than 30 nor more than 60 days' notice at the Make-Whole
Price (as defined in the Indenture), plus accrued and unpaid interest on the
Notes, if any, to the redemption date. The Notes may be redeemed at the option
of the Company as a whole, or from time to time in part, on any date on or after
[ ], 200_, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the Holders of Notes to
be redeemed, all as provided in the Indenture, at the following redemption
prices (expressed in percentages of principal amount) together in each case with
accrued and unpaid interest to the date fixed for redemption (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest on an Interest Payment Date that is on or prior to the redemption
date):
If redeemed during the twelve-month period beginning [ ],
Year Percentage
200_............................................................ [ ]%
200_............................................................ [ ]%
200_............................................................ [ ]%
200_ and thereafter............................................. 100.000%
In addition, at any time or from time to time prior to ____, 2002, the
Company may redeem up to 35% of the original aggregate principal amount of
the
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Notes at a redemption price equal to ____% of the principal amount of the Notes
so redeemed, plus accrued and unpaid interest thereon (if any) to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of one or more private placements to Persons other than Affiliates of
the Company or public offerings of common stock of the Company, in each case
resulting in gross proceeds to the Company of at least $100 million in the
aggregate; provided that
o at least 65% of the original aggregate principal amount of the
Notes would remain outstanding immediately after giving effect to
such redemption;
o any such redemption shall be made within 90 days of such private
placement or public offering upon not less than 30 nor more than
60 days' prior notice; and
o any such redemption may not occur in connection with or after the
occurrence of a Change of Control.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Note (or portion hereof if this Note is
redeemed in part) shall cease to accrue upon the date duly fixed for redemption
of this Note (or portion hereof if this Note is redeemed in part).
Upon the occurrence of a Change of Control Triggering Event (as defined
in the Indenture), any Holder of Notes will have the right to cause the Company
to purchase the Notes of such Holder, in whole or in part in integral multiples
of aggregate principal amount of $1,000, at a purchase price in cash equal to
101% of the principal amount of the Notes on the purchase date plus accrued and
unpaid interest, if any, to such purchase date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), as provided in, and subject to, the terms of the
Indenture.
The Company, the Trustee, and any authorized agent of the Company or
the Trustee, may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or the Trustee or any authorized agent of the Company or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Company nor
the Trustee nor any
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authorized agent of the Company or the Trustee shall be affected by any notice
to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note, for any claim based thereon, or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture, or in any of the Notes or because of
the creation of any Debt (as defined in the Indenture) represented thereby,
against any incorporator, shareholder, officer, director, employee or
controlling person of the Company or of any successor Person thereof, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture is hereby incorporated by the reference and to the extent
of any variance between the provisions hereof and the Indenture, the Indenture
shall control.
This Note shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the laws
of said State, except as may otherwise be required by mandatory provisions of
law.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________ attorney to transfer said Note on the books of
the Company with full power of substitution in the premises.
Date:
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NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 3.15 or Section 3.18 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 3.15 or Section 3.18 of the Indenture, state the amount (in
principal amount): $_______________.
Date:
----------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
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AND WHEREAS, all things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee as in the Indenture
provided, the valid, binding and legal obligations of the Company, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Notes by the
Holders thereof, the Company and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective Holders from time to time of
the Notes as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with GAAP
(whether or not such is indicated herein). 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. The terms
defined in this Article include the plural as well as the singular.
"ACCRETED VALUE" of any Debt issued at a price less than the principal
amount at stated maturity, means, as of any date of determination, an amount
equal to the sum of (a) the issue price of such Debt as determined in accordance
with Section 1273 of the Code or any successor provisions plus (b) the aggregate
of the portions of the original issue discount (the excess of the amounts
considered as part of the "stated redemption price" of such Debt within the
meaning of Section 1273(a)(2) of the Code or any successor provisions, whether
denominated as principal or interest, over the issue price of such Debt) that
shall until that time have accrued pursuant to Section 1272 of the Code (without
regard to Section
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1272(a)(7) of the Code) from the date of issue of such Debt to the date of
determination, minus all amounts until that time paid in respect of such Debt,
which amounts are considered as part of the "stated redemption price" of such
Debt within the meaning of Section 1273(a)(2) of the Code or any successor
provisions (whether such amounts paid were denominated principal or interest).
"ACQUIRED DEBT" means, with respect to any specified Person,
o Debt of any other Person existing at the time such Person
merges with or into or consolidates with or becomes a
Subsidiary of such specified Person and
o Debt secured by a Lien encumbering any Property acquired by
such specified Person,
which Debt was not incurred in connection with, or in anticipation of,
such merger, consolidation or acquisition or such Person becoming a
Subsidiary of such specified Person.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of the
covenants described in Section 3.15 and Section 3.17 the definition of
"Telecommunications Assets" only, "Affiliate" shall also mean any beneficial
owner of shares representing more than 10% or more of the total voting power of
the Voting Stock on a fully diluted basis of the Company or of rights or
warrants to purchase such Voting Stock, whether or not currently exercisable,
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"ASSET DISPOSITION" means any transfer, conveyance, sale, lease,
issuance or other disposition by the Company or any Restricted Subsidiary in one
or more related transactions (including a consolidation or merger or other sale
of any such Restricted Subsidiary with, into or to another Person in a
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary of the Company, but excluding a disposition by a Restricted
Subsidiary to the Company or a Restricted Subsidiary or by the Company to a
Restricted Subsidiary) of:
(1) shares of Capital Stock or other ownership interests of a
Restricted Subsidiary (other than as permitted by clause (5), (6), (7)
or (9)
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of the covenant described in Section 3.16 and other than any
transaction in which the Company or such Restricted Subsidiary receives
therefor one or more properties with a Fair Market Value equal to the
Fair Market Value of the Capital Stock issued, sold or disposed of by
the Company or the Restricted Subsidiary);
(2) real property;
(3) all or substantially all of the assets of the Company or
any Restricted Subsidiary representing a division or line of business;
or
(4) other Property of the Company or any Restricted Subsidiary
outside of the ordinary course of business, excluding
o any transfer, conveyance, sale, lease or the disposition of
Property by the Company or any Restricted Subsidiary for which
the Company or any Restricted Subsidiary receives capacity and
o any transfer, conveyance, sale, lease or other disposition of
equipment that in the good faith judgment of the Company is
obsolete, damaged, worn out or no longer used by or useful to
the Company;
provided, in each case, that the aggregate consideration for such transfer,
conveyance, sale, lease or other disposition is equal to $5 million or more in
any 12-month period.
The following shall not be Asset Dispositions:
(1) Permitted Telecommunications Asset Dispositions that
comply with clause (1) of the first paragraph in Section 3.15;
(2) when used with respect to the Company, any Asset
Disposition permitted pursuant to Article Eight which constitutes a
disposition of all or substantially all of the assets of the Company
and the Restricted Subsidiaries taken as a whole;
(3) Receivables sales constituting Debt under Qualified
Receivable Facilities permitted to be Incurred pursuant to Section
3.08;
(4) sales, leases, conveyances, transfers or other
dispositions to the Company or to a Restricted Subsidiary or to any
other person if, after
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giving effect to such sale, lease, conveyance, transfer or other
disposition, such other Person becomes a Restricted Subsidiary; and
(5) any disposition that results in a Permitted Investment
(other than pursuant to clause (f) or (i) of the definition of
"Permitted Investment") or a Restricted Payment permitted by Section
3.11.
"ATTRIBUTABLE VALUE" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount owed under such lease is to be determined, the total
net amount of rent required to be paid by such Person under such lease during
the remaining term of such lease, including any period for which such lease has
been extended, as determined in accordance with GAAP, discounted from the last
date of such remaining term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capital Lease
Obligation with like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the case
of any lease which is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the lesser of the amount of such penalty (in
which case no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated) or the rent
which would otherwise be required to be paid if such lease is not so terminated.
"ATTRIBUTABLE VALUE" means, as to a Capital Lease Obligation, the principal
amount of such Capital Lease Obligation.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors (or similar governing body) of such person or any committee of the
Board of Directors (or similar governing body) of such Person authorized, with
respect to any particular matter, to exercise the power of the Board of
Directors (or similar governing body) of such Person.
"BOARD RESOLUTION" means a copy of a resolution, certified by the
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 any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"CAPITAL LEASE OBLIGATION" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
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conveying the right to use) Property of such Person which is required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with GAAP (a "CAPITAL LEASE"). The
stated maturity of such obligation shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty. The
principal amount of such obligation shall be the capitalized amount thereof that
would appear on the face of a balance sheet of such Person in accordance with
GAAP.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participations or other equivalents however designated of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person and any rights (other than debt securities convertible
or exchangeable into an equity interest), warrants or options to acquire an
equity interest in such Person.
"CASH EQUIVALENTS" means:
(1) Government Securities maturing, or subject to tender at
the option of the holder thereof, within two years after the date of
acquisition thereof;
(2) time deposits and certificates of deposit of any
commercial bank organized in the United States having capital and
surplus in excess of $500 million or a commercial bank organized under
the law of any other country that is a member of the Organization for
Economic Cooperation and Development having total assets in excess of
$500 million, or its foreign currency equivalent at the time, with a
maturity date not more than one year from the date of acquisition;
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with
o any bank meeting the qualifications specified in clause (2)
above or
o any primary government securities dealer reporting to the
Market Reports Division of the Federal Reserve Bank of New
York;
(4) direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing, or subject to tender at the
option of the holder of such obligation, within one year after the date
of acquisition
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thereof; provided that, at the time of acquisition, the long-term debt
of such state, political subdivision or public instrumentality has a
rating of A, or higher, from S&P or A-2 or higher from Xxxxx'x or, if
at any time neither S&P nor Xxxxx'x shaft be rating such obligations,
then an equivalent rating from such other nationally recognized rating
service;
(5) commercial paper issued by the parent corporation of any
commercial bank organized in the United States having capital and
surplus in excess of $500 million or a commercial bank organized under
the laws of any other country that is a member of the Organization for
Economic Cooperation and Development having total assets in excess of
$500 million or its foreign currency equivalent at the time, and money
market instruments and commercial paper issued by others having one of
the three highest ratings obtainable from either S&P or Xxxxx'x, or, if
at any time neither S&P nor Xxxxx'x shall be rating such obligations,
then from such other nationally recognized rating service and in each
case maturing within one year after the date of acquisition;
(6) overnight bank deposits and bankers' acceptances at any
commercial bank organized in the United States having capital and
surplus in excess of $500 million or a commercial bank organized under
the laws of any other country that is a member of the Organization for
Economic Cooperation and Development having total assets in excess of
$500 million or its foreign currency equivalent at the time;
(7) deposits available for withdrawal on demand with a
commercial bank organized in the United States having capital and
surplus in excess of $500 million or a commercial bank organized under
the laws of any other country that is a member of the Organization for
Economic Cooperation and Development having total assets in excess of
$500 million or its foreign currency equivalent at the time; and
(8) investments in money market funds substantially all of
whose assets comprise securities of the types described in clauses (1)
through (7).
"CERTIFICATED SECURITIES" means securities issued in the form of
permanent certificated securities in registered form in substantially the form
hereinabove recited.
"CHANGE OF CONTROL" has the meaning set forth in Section 3.18.
"CHANGE OF CONTROL TRIGGERING EVENT" has the meaning set forth in
Section 3.18.
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"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"CONSOLIDATED CAPITAL RATIO" means as of the date of determination the
ratio of (1) the aggregate amount of Debt of the Company and its Restricted
Subsidiaries on a consolidated basis as at the date of determination to (2) the
sum of:
(a) the Company's capital in excess of par value on the date
of this Indenture determined on a consolidated basis in accordance with
GAAP;
(b) the aggregate Net Proceeds to the Company from the
issuance or sale of any Capital Stock, including Preferred Stock, of
the Company other than Disqualified Stock subsequent to the date of
this Indenture; and
(c) the aggregate Net Proceeds from the issuance or sale of
Debt of the Company or any Restricted Subsidiary subsequent to the date
of this Indenture convertible or exchangeable into Capital Stock of the
Company other than Disqualified Stock, in each case upon conversion or
exchange thereof into Capital Stock of the Company subsequent to the
date of this Indenture;
provided, however, that, for purposes of calculation of the Consolidated Capital
Ratio, the Net Proceeds from the issuance or sale of Capital Stock or Debt
described in clause (b) or (c) above shall not be included to the extent
o such proceeds have been utilized to make a Permitted Investment
under clause (i) of the definition thereof or a Restricted Payment
or
o such Capital Stock or Debt shall have been issued or sold to the
Company, a Subsidiary of the Company or a Plan.
"CONSOLIDATED CASH FLOW AVAILABLE FOR FIXED CHARGES" for any period
means the Consolidated Net Income of the Company and its Restricted Subsidiaries
for such period increased by the sum of, to the extent reducing Consolidated Net
Income for such period;
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(1) Consolidated Interest Expense of the Company and its
Restricted Subsidiaries for such period; plus
(2) Consolidated Income Tax Expense of the Company and its
Restricted Subsidiaries for such period; plus
(3) consolidated depreciation and amortization expense and any
other non-cash items (other than any such non-cash item to the extent
that it represents an accrual of or reserve for cash expenditures in
any future period) for such period; plus
(4) any penalty paid in such period in connection with
redeeming or retiring any Debt prior to its stated maturity; plus
(5) any change in Deferred Revenue during such period;
provided, however, that there shall be excluded therefrom the Consolidated Cash
Flow Available for Fixed Charges, if positive, of any Restricted Subsidiary
(calculated separately for such Restricted Subsidiary in the same manner as
provided above for the Company) that is subject to a restriction which prevents
the payment of dividends or the making of distributions to the Company or
another Restricted Subsidiary to the extent of such restrictions.
"CONSOLIDATED INCOME TAX EXPENSE" for any period means the aggregate
amounts of the provisions for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" for any period means the interest
expense included in a consolidated income statement, excluding interest income,
of the Company and its Restricted Subsidiaries for such period in accordance
with GAAP, including without limitation or duplication (or, to the extent not so
included, with the addition of (but in no event adding any amount that would be
eliminated in consolidation in accordance with GAAP)):
(1) the amortization of Debt discounts and issuance costs,
including commitment fees;
(2) any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities;
(3) net costs with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements,
including fees;
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(4) Preferred Stock Dividends other than dividends paid in
shares of Preferred Stock that is not Disqualified Stock declared and
paid or payable;
(5) accrued Disqualified Stock Dividends, whether or not
declared or paid;
(6) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries;
(7) the portion of any Capital Lease Obligation or Sale and
Leaseback Transaction paid during such period that is allocable to
interest expense in accordance with GAAP; and
(8) the cash contributions to any Plan to the extent such
contributions are used by such Plan to pay interest or fees to any
Person, other than the Company or a Restricted Subsidiary, in
connection with Debt Incurred by such Plan.
"CONSOLIDATED NET INCOME" for any period means the net income (or loss)
of the Company and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (or loss):
(a) for purposes of Section 3.11 only, the net income (or
loss) of any Person acquired by the Company or a Restricted Subsidiary
in a pooling-of-interests transaction for any period prior to the date
of such transaction;
(b) the net income (or loss) of any Person that is not a
Restricted Subsidiary except to the extent of the amount of dividends
or other distributions actually paid to the Company or a Restricted
Subsidiary by such Person during such period (except, for purposes of
Section 3.11 only, to the extent such dividends or distributions have
been subtracted from the calculation of the amount of Investments to
support the actual making of Investments);
(c) gains or losses realized upon the sale or other
disposition of any Property of the Company or its Restricted
Subsidiaries that is not sold or disposed of in the ordinary course of
business (it being understood that Permitted Telecommunications Asset
Dispositions shall be considered to be in the ordinary course of
business);
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(d) all extraordinary gains and extraordinary losses,
determined in accordance with GAAP;
(e) the cumulative effect of changes in accounting principles;
(f) non-cash gains or losses resulting from fluctuations in
currency exchange rates;
(g) any non-cash expense related to the issuance to employees
or directors of the Company or any Restricted Subsidiary of (1) options
to purchase Capital Stock of the Company or such Restricted Subsidiary
or (2) other compensatory rights; and
(h) with respect to a Restricted Subsidiary that is not a
Wholly Owned Subsidiary any aggregate net income (or loss) in excess of
the Company's or any Restricted Subsidiary's pro rata share of the net
income (or loss) of such Restricted Subsidiary that is not a Wholly
Owned Subsidiary, but such excess shall be excluded only to the extent
that such minority interest in net income (or loss) is not otherwise
excluded in determining consolidated net income in accordance with
GAAP; provided further that there shall further be excluded therefrom
the net income (but not net loss) of any Restricted Subsidiary that is
subject to a restriction which prevents the payment of dividends or the
making of distributions to the Company or another Restricted Subsidiary
to the extent of such restriction; provided further, that at the time
any restriction referred to in the immediately preceding proviso ceases
to be effective, all of such net income previously excluded from
Consolidated Net Income by reason of such proviso shall be included
cumulatively in Consolidated Net Income in the accounting period during
which such restriction ceases to be effective.
"CONSOLIDATED NET WORTH" of any Person means the stockholders' equity
of such Person, determined on a consolidated basis in accordance with GAAP, less
(to the extent not otherwise accounted for as a liability) amounts attributable
to Disqualified Stock of such Person.
"CONSOLIDATED TANGIBLE ASSETS" of any Person means the total amount of
assets (less applicable reserves and other properly deductible items) which
under GAAP would be included on a consolidated balance sheet of such Person and
its Subsidiaries after deducting from such total amount of assets all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, which in each case under GAAP would be included on such
consolidated balance sheet.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000.
"CREDIT FACILITIES" means one or more credit agreements, including
without limitation, the Permanent Credit Facility, loan agreements, fiscal
agency agreements (other than fiscal agency agreements relating to Debt
Securities) or similar facilities, secured or unsecured, providing for working
capital advances, revolving credit loans, term loans and/or letters of credit,
including any Qualified Receivable Facility, entered into from time to time by
the Company and its Restricted Subsidiaries, and including any related notes,
Guarantees, collateral documents, instruments and agreements executed with such
credit facilities, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
"DEBT" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of Property;
(3) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person or for which such Person is otherwise
obligated to make payment;
(4) every obligation of such Person issued or assumed as the
deferred purchase price of Property or services, including securities
repurchase agreements;
(5) every Capital Lease Obligation of such Person;
(6) all obligations to redeem or repurchase Disqualified Stock
issued by such Person and all Attributable Value in respect of Sale and
Leaseback Transactions entered into by such Person;
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(7) the liquidation preference of any Preferred Stock, other
than Disqualified Stock, which is covered by the preceding clause (6),
issued by any Restricted Subsidiary of such Person;
(8) every obligation under Interest Rate or Currency
Protection Agreements of such Person; and
(9) every obligation of the type referred to in clauses (1)
through (8) of another Person and all dividends of another Person the
payment of which, in either case, such Person has Guaranteed.
The "amount" or "principal amount" of Debt at any time of determination
as used herein represented by (a) any Debt issued at a price that is less than
the principal amount thereof, shall be, except as otherwise set forth here, the
Accreted Value at maturity such Debt at such time or (b) in the case of any
Receivables sale constituting Debt, the amount of the unrecovered purchase price
paid (that is, the amount paid for Receivables that has not been actually
recovered from the collection of such Receivables) by the purchaser (other than
the Company or a Wholly Owned Restricted Subsidiary of the Company) thereof.
The amount of Debt represented by an obligation under an Interest Rate
or Currency Protection Agreement shall be equal to
(x) zero if such obligation has been Incurred pursuant to clause (10)
of paragraph (b) of Section 3.08 or
(y) the notional amount of such obligation if not Incurred pursuant
to such clause.
Despite the above,"Debt" does not include trade accounts payable or
accrued liabilities arising in the ordinary course of business.
"DEBT SECURITIES" means any debt securities, including any Guarantee of
such securities, issued by the Company or any Domestic Restricted Subsidiary in
connection with an underwritten public offering or an underwritten private
placement for resale in accordance with Rule 144A and/or Regulation S, in each
case, not rated or rated below Baa3 by Xxxxx'x or BBB- by S&P, or an equivalent
below investment grade rating by any successor Rating Agency.
"DEFAULT" means any event, act or condition the occurrence of which is,
or after notice or the passage of time or both would be, an Event of Default.
"DEFERRED REVENUE" means amounts appearing as a liability on the
financial statements of WCG prepared in accordance with generally accepted
accounting principles as deferred revenue, provided that, in the case of any
increase in deferred revenue, only to the extent of cash received in connection
therewith.
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"DEPOSITARY" means The Depository Trust Company, its nominees, and
their respective successors.
"DISQUALIFIED STOCK" of any Person means any Capital Stock of such
Person which, by its terms, or by the terms of any security into which it is
convertible or for which it is exchangeable, or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the final Stated Maturity of the Notes; provided, however,
that any Preferred Stock which would not constitute Disqualified Stock but for
provisions of such Preferred Stock giving holders thereof the right to require
the Company to repurchase or redeem such Preferred Stock upon the occurrence of
a change of control or asset disposition occurring prior to the final Stated
Maturity of the Notes shall not constitute Disqualified Stock if the change of
control or asset disposition provisions applicable to such Preferred Stock are
no more favorable to the holders of such Preferred Stock than the provisions
applicable to the Notes contained in Section 3.15 and Section 3.18 and such
Preferred Stock specifically provides that the Company will not repurchase or
redeem any such stock pursuant to such provisions prior to the Company's
repurchase of such Notes as are required to be repurchased pursuant to Section
3.15 and Section 3.18; and provided further, that such Preferred Stock will not
be deemed Disqualified Stock if it is redeemable by exchange for or through the
issuance of Capital Stock (other than Disqualified Stock).
"DISQUALIFIED STOCK DIVIDENDS" means all dividends with respect to
Disqualified Stock of the Company held by Persons other than a Wholly Owned
Restricted Subsidiary. The amount of any such dividend shall be equal to the
quotient of such dividend divided by the difference between one and the maximum
statutory federal income tax rate (expressed as a decimal number between 1 and
0) applicable to the Company for the period during which such dividends were
paid.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of
the Company
o that was formed under the laws of the United States of America or
any state, district or territory thereof or the District of
Columbia or
o 50% or more of the assets of which are located in the United
States or any territory thereof.
"DOMESTIC RESTRICTED SUBSIDIARY GUARANTEE" means a supplemental
indenture to the Indenture in form satisfactory to the Trustee, providing for an
unconditional Guarantee by a Domestic Restricted Subsidiary of payment in full
of
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the principal of, premium, if any, and interest on the Notes. Any such Domestic
Restricted Subsidiary Guarantee shall not be subordinate to any Debt of the
Domestic Restricted Subsidiary providing the Domestic Restricted Subsidiary
Guarantee.
"ELIGIBLE RECEIVABLES" means, at any time, Receivables of the Company
and its Restricted Subsidiaries, as evidenced on the most recent quarterly
consolidated balance sheet of the Company as at a date at least 45 days prior to
such time, arising in the ordinary course of business of the Company or any
Restricted Subsidiary.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.01 which shall have continued for the period of time, if any, therein
designated.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder (or respective
successors thereto).
"EXISTING INTERNATIONAL JOINT VENTURES" means ATL, PowerTel,
MetroCom and Algar.
"FAIR MARKET VALUE" means, with respect to any Property, the price that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under pressure
or compulsion to complete the transaction. Unless otherwise specified in the
Indenture, and except in the case of Permitted Telecommunications Asset
Dispositions in the ordinary course of business Fair Market Value shall be
determined by the Board of Directors of the Company acting in good faith and
shall be evidenced by a resolution of the Board of Directors of the Company.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the date of the Indenture, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
fully and unconditionally guaranteed or insured by, the United States of America
or any agency or instrumentality thereof for the payment of which obligations or
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guarantee the full faith and credit of the United States is pledged and which
are not callable or redeemable at the issuer's option (unless, for purposes of
the definition of "Cash Equivalents" only, the obligations are redeemable or
callable at a price less than the purchase price paid by the Company or the
applicable Restricted Subsidiary, together with all accrued and unpaid interest,
if any, on such Government Securities).
"GUARANTEE" by any Person means any obligation, direct or indirect,
contingent or otherwise, of such Person guaranteeing, or having the economic
effect of guaranteeing, any Debt of any other Person in any manner, whether
directly or indirectly.
"GUARANTOR" means a Domestic Restricted Subsidiary of the Company that
has executed a Domestic Restricted Subsidiary Guarantee.
"HOLDERS", "HOLDER OF NOTES", "NOTEHOLDER" or other similar terms means
a person in whose name a Note is registered.
"INCUR" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including the recording, as required pursuant to GAAP or otherwise, of any such
Debt or other obligation on the balance sheet of such Person (and "Incurrence,"
"Incurred, "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing); provided, however, that
o a change in GAAP that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt and
o neither the accrual of interest nor the amortization or accretion
of original issue discount
shall be deemed an Incurrence of Debt.
Debt otherwise incurred by a Person before it becomes a Subsidiary of
the Company shall be deemed to have been Incurred at the time at which it
becomes a Restricted Subsidiary.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented.
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"INTEREST PAYMENT DATE" means each semiannual interest payment date on
[ ] and [ ] of each year, commencing [ ].
"INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"INVESTED CAPITAL" means the sum of:
(a) $625 million;
(b) the aggregate Net Proceeds received by the Company from
the issuance or sale of any Capital Stock, including Preferred Stock,
of the Company, but excluding Disqualified Stock, subsequent to the
date of the Indenture and from the Over-allotment Option; and
(c) the aggregate Net Proceeds from the issuance or sale of
Debt of the Company or any Restricted Subsidiary subsequent to the date
of the Indenture convertible or exchangeable into Capital Stock of the
Company other than Disqualified Stock, in each case upon conversion or
exchange thereof into Capital Stock of the Company subsequent to the
date of the Indenture;
provided, however, that the Net Proceeds from the issuance or sale of Capital
Stock or Debt described in clause (b) or (c) shall be excluded from any
computation of Invested Capital to the extent (1) utilized to make a Restricted
Payment or (2) such Capital Stock or Debt shall have been issued or sold to the
Company, a Subsidiary of the Company or a Plan.
"INVESTMENT" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other Property to others or payments for Property or services for the
account or use of others, or otherwise) to, purchase, redemption, retirement or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by, or Incurrence of, or payment on, a Guarantee of any
obligation of, any other Person; provided that Investments shall exclude
o commercially reasonable extensions of trade credit,
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o trade receivables arising in the ordinary course of business;
provided, that such receivables would be recorded as assets of
such Person in accordance with GAAP,
o Investments received in connection with the bankruptcy or
reorganization of suppliers and customers or in good xxxxx xxxx
fide settlement of delinquent ordinary course of business trade
receivables of customers,
o endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable
instruments of such other Person received as payment for ordinary
course of business trade receivables, and
o any Investment that is less than $100,000.
The amount, as of any date of determination, of any Investment shall be
the original cost of such Investment, plus the cost of all additions, as of such
date, thereto and minus the amount, as of such date, of any portion of such
Investment repaid to such Person in cash as a repayment of principal or a return
of capital, as the case may be (except to the extent such repaid amount has been
included in Consolidated Net Income to support the actual making of Restricted
Payments), but without any other adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.
In determining the amount of any Investment involving a transfer of any Property
other than cash, such Property shall be valued at its Fair Market Value at the
time of such transfer.
"JOINT VENTURE" means a Person in which the Company or a Restricted
Subsidiary holds, directly or indirectly, not more than 50% of the shares of
Voting Stock.
"LIEN" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness), encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property (including any Capital Lease Obligation,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing and any Sale and Leaseback
Transaction). For purposes of this definition the sale, lease, conveyance or
other transfer by the Company or any of its Subsidiaries of, including the grant
of indefeasible rights of use or equivalent arrangements with respect to, dark
or lit communications fiber capacity or communications conduit shall not
constitute a Lien.
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"MAKE-WHOLE AMOUNT" means, with respect to any Note, an amount equal to
the excess, if any, of:
(1) the present value of the remaining principal, premium and
interest payments that would be payable with respect to such Note if
such Note were redeemed on ______, 200_, computed using a discount rate
equal to the Treasury Rate plus 50 basis points; over
(2) the outstanding principal amount of such Note.
"MAKE-WHOLE AVERAGE LIFE" means, with respect to any date of redemption
of Notes, the number of years (calculated to the nearest one-twelfth) from such
redemption date to ______, 200_.
"MAKE-WHOLE PRICE" means, with respect to any Note, the greater of (1)
the sum of the principal amount of such Note and the Make-Whole Amount with
respect to such Note and (2) the redemption price of such Note on _______, 200_.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or, if Xxxxx'x
Investors Service, Inc. shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "Moody's" shall mean any other
national recognized rating agency, other than S&P, that rates debt securities
having a maturity at original issuance of at least one year and that shall have
been designated by the Company.
"NET AVAILABLE PROCEEDS" from any Asset Disposition by any Person means
cash or cash equivalents received (including amounts received by way of sale or
discounting of any note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such Property) therefrom by
such Person, net of:
(1) all legal, title and recording taxes, expenses and
commissions and other fees and expenses (including appraisals,
brokerage commissions and investment banking fees) Incurred and all
federal, state, provincial, foreign and local taxes required to be
accrued as a liability as a consequence of such Asset Disposition;
(2) all payments made by such Person or its Subsidiaries on
any Debt which is secured by such Property in accordance with the terms
of any Lien upon or with respect to such Property or which must by the
terms
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of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or by applicable law, be repaid out of the proceeds from
such Asset Disposition;
(3) all distributions and other payments required to be made
to minority interest holders in Subsidiaries or Joint Ventures of such
Person as a result of such Asset Disposition; and
(4) appropriate amounts to be provided by such Person or any
Subsidiary of such Person, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such
Property and retained by such Person or any Subsidiary of such Person,
as the case may be, after such Asset Disposition, including liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case
as determined by the Board of Directors of such Person, in its
reasonable good faith judgment evidenced by a resolution of the Board
of Directors filed with the Trustee; provided, however, that any
reduction in such reserve within twelve months following the
consummation of such Asset Disposition will be, for all purposes of the
Indenture and the Notes, treated as a new Asset Disposition at the time
of such reduction with Net Available Proceeds equal to the amount of
such reduction; provided further, however, that, if any consideration
for a transaction, which would otherwise constitute Net Available
Proceeds, is required to be held in escrow pending determination of
whether a purchase price adjustment will be made, at such time as such
portion of the consideration is released to such Person or its
Restricted Subsidiary from escrow, such portion shall be treated for
all purposes of the Indenture and the Notes as a new Asset Disposition
at the time of, but not before, such release from escrow with Net
Available Proceeds equal to the amount of such portion of consideration
released from escrow.
"NET PROCEEDS" means the aggregate net proceeds (including the Fair
Market Value of non-cash proceeds constituting Capital Stock in or of a person
engaged in a Telecommunications Business or assets of a type generally used in a
Telecommunications Business) received by a Person from the sale of Capital Stock
or Debt after payment of out-of-pocket expenses, commissions and discounts
incurred and net of taxes paid or payable in connection with the sale of such
Capital Stock or Debt.
"NOTE" or "NOTES" means any note or notes, as the case may be,
authenticated and delivered under this Indenture.
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"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"OFFER TO PURCHASE" means a written offer sent by the Company by
first-class mail, postage prepaid, to each Holder of Notes at its address
appearing in the Note Register on the date of the offer offering to purchase up
to the principal amount of Notes specified in such offer at the purchase price
specified in such offer (as determined pursuant to the Indenture). Unless
otherwise required by applicable law, the offer shall specify an expiration date
of the Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
such offer and a settlement date (the "PURCHASE DATE") for purchase of Notes
within five business days after the expiration date. The Company shall notify
the Trustee at least 15 business days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the offer of the Company's obligation to
make an Offer to Purchase, and the offer shall be mailed by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company. The offer shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include) any information required by
applicable law to be included therein).
The offer shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Offer to Purchase. The offer
shall also state (to the extent not inconsistent with then applicable laws,
rules or regulations):
(a) the section of the Indenture pursuant to which the Offer
to Purchase is being made;
(b) the expiration date and the Purchase Date;
(c) the aggregate principal amount of the outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the section of the Indenture requiring the
Offer to Purchase) (the "PURCHASE AMOUNT");
(d) the purchase price to be paid by the Company for $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to the Indenture) (the "PURCHASE PRICE");
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(e) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(f) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(g) that any Notes not tendered or tendered but not purchased
by the Company will continue to accrue interest;
(h) that on the Purchase Date the Purchase Price will become
due and payable upon each Note being accepted for payment pursuant to
the Offer to Purchase and that interest thereon, if any, shall cease to
accrue on and after the Purchase Date;
(i) that each Holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at the place
or places specified in the offer prior to the close of business on the
expiration date (such Note being, if the Company or the Trustee so
requires, duty endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(j) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company (or the paying agent)
receives, not later than the close of business on the expiration date,
a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder tendered, the
certificate number of the Note the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
(k) that (1) if Notes in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (2) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Notes in denominations of $1,000 or integral multiples thereof shall be
purchased); and
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(l) that in the case of any Holder whose Note is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the offer for such Offer to Purchase.
"OFFICER" means, with respect to the Company, (1) the Chairman of the
Board of Directors, the President, any Vice President, the Chief Financial
Officer, and (2) the Treasurer or any Assistant Treasurer, or the Secretary or
any Assistant Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "Vice President") and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.05.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company or who may be other
counsel satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 11.05, and such others as may reasonably be requested by the Trustee,
if and to the extent required hereby.
"OUTSTANDING", when used with reference to Notes, subject to the
provisions of Article Twelve, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside, segregated and held in trust by
the Company (if the Company shall act as its own paying agent),
provided that if such Notes
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are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Notes in substitution for which other Notes shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.08 (unless proof satisfactory to the
Trustee and the Company is presented that any of such Notes is held by
a person in whose hands such Note is a legal, valid and binding
obligation of the Company).
"OVER-ALLOTMENT OPTION" means the over-allotment option granted to the
underwriters of the equity offering consummated on [ ], 1999.
"PERMANENT CREDIT FACILITY" means the senior credit facility to be
entered into by and among Xxxxxxxx Communications, Inc., WCG, as Guarantor, Bank
of America, N.A. (NationsBank, N.A. d/b/a Bank of America, N.A.), as
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, Bank of
Montreal and The Bank of New York, as Co-Documentation Agents, and the Lenders
from time to time party thereto, including any related notes, Guarantees,
collateral documents, instruments, agreements and Incremental Facilities (as
defined therein) executed at any time in connection therewith, on terms
substantially similar to those disclosed in the registration statement relating
to the Notes dated _____, 1999, and in each case as may be amended,
supplemented, modified, restated or replaced from time to time (including
amendments, supplements, modifications, restatements, replacements or
Incremental Facilities which increase the principal amount of Debt permitted
thereunder; provided that any such increase will not increase the amount of Debt
which may be incurred at the time of such increase pursuant to clause (2) of
paragraph (b) in Section 3.08).
"PERMITTED HOLDERS" means
o The Xxxxxxxx Companies, Inc. and any of its Subsidiaries,
o any corporation the outstanding voting power of the Capital Stock
of which is beneficially owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of the voting power of the Capital Stock of the
Company,
o any underwriter during the period engaged in a firm commitment
underwriting on behalf of the Company with respect to the shares
of Capital Stock being underwritten or
o the Company or any Subsidiary of the Company.
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"PERMITTED INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and not for purposes of
speculation and which, in the case of an interest rate agreement, shall have a
notional amount no greater than the principal amount at maturity due with
respect to the Debt being hedged thereby.
"PERMITTED INVESTMENTS" means:
(a) Cash Equivalents;
(b) investments in prepaid expenses;
(c) negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits;
(d) loans, advances or extensions of credit to employees,
officers and directors of the Company or any Restricted Subsidiary made
in the ordinary course of business and consistent with past practice or
in connection with employee benefits agreements or arrangements
approved by the Board of Directors of the Company;
(e) obligations under Permitted Interest Rate or Currency
Protection Agreements;
(f) Investments received as consideration for, or customary
indemnities given in connection with, Asset Dispositions pursuant to
and in compliance with Section 3.15 and for Permitted Telecommunication
Asset Dispositions;
(g) Investments in the Company or any Restricted Subsidiary,
or in any Person as a result of which such Person becomes a Restricted
Subsidiary;
(h) Investments made prior to the date of the Indenture;
(i) Investments made after the date of the Indenture in
Persons engaged in the Telecommunications Business in an aggregate
amount as of the date of determination not to exceed Invested Capital
as of the date of determination;
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(j) Investments deemed to have been made as a result of the
acquisition of a Person that at the time of such acquisition held
instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person;
(k) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers or in good xxxxx xxxx fide
settlement of delinquent ordinary course of business trade receivables
of customers;
(l) Investments where all or a portion of the consideration
provided is Capital Stock of the Company, other than Disqualified
Stock, but the same shall constitute a Permitted Investment only to the
extent of such consideration provided in the form of such Capital
Stock;
(m) Investments in Existing International Joint Ventures;
provided that the aggregate amount of such Investments made after the
date of the Indenture does not exceed $100 million as of the date of
determination; and
(n) additional Investments in an aggregate amount not to
exceed $200 million.
"PERMITTED LIENS" means:
(a) Liens for taxes, assessments, governmental charges, levies
or claims which are not yet delinquent or which are being contested in
good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made for such Liens,
(b) other Liens incidental to the conduct of the Company's and
its Restricted Subsidiaries' businesses or the ownership of its
Property not securing any Debt, and which do not in the aggregate
materially detract from the value of the Company's and its Restricted
Subsidiaries' Property when taken as a whole, or materially impair the
use thereof in the operation of its business;
(c) Liens, pledges and deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of statutory obligations;
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(d) Liens, pledges or deposits made to secure the performance
of tenders, bids, leases, public or statutory obligations, sureties,
stays, appeals, indemnities, performance or other similar bonds and
other obligations of like nature incurred in the ordinary course of
business, exclusive of obligations for the payment of borrowed money,
the obtaining of advances or credit or the payment of the deferred
purchase price of Property and which do not in the aggregate materially
impair the use of Property in the operation of the business of the
Company and the Restricted Subsidiaries taken as a whole;
(e) zoning restrictions, servitudes, easements, rights-of-way,
restrictions and other similar charges or encumbrances incurred in the
ordinary course of business which, in the aggregate, do not materially
detract from the value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the Company or
its Restricted Subsidiaries;
(f) any interest or title of a lessor in the Property subject
to any lease other than a Capital Lease;
(g) Liens with respect to assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company to secure Debt
owing to the Company;
(h) Liens arising out of judgments or awards against the
Company or any Restricted Subsidiary of the Company with respect to
which the Company or such Restricted Subsidiary is prosecuting an
appeal or proceeding for review and the Company or such Restricted
Subsidiary is maintaining adequate reserves in accordance with GAAP;
(i) Liens arising by operation of law in connection with
judgments, only to the extent, for an amount and for a period not
resulting in an Event of Default with respect thereto;
(j) Liens securing Permitted Interest Rate or Currency
Protection Agreement; and
(k) Liens in favor of the Trustee arising under the Indenture.
"PERMITTED TELECOMMUNICATIONS ASSET DISPOSITION" means the transfer,
conveyance, sale, lease or other disposition of an interest in or capacity on
optical fiber and/or conduit and any related equipment used in a Segment of the
Company's communications network, whether or not in the ordinary course of
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business; provided that after giving effect to such disposition, the Company
would retain at least
(1) with respect to any Segment constructed by, for or on
behalf of the Company or any of its subsidiaries or affiliates,
o 24 optical fibers per route mile on such Segment as
deployed at the time of such disposition; or
o 12 optical fibers and one empty conduit per route
mile on such Segment as deployed at such time; and
(2) with respect to any Segment purchased or leased from third
parties, the lesser of
o 50% of the optical fibers per route mile originally
purchased on such Segment;
o 24 optical fibers per route mile on such Segment as
deployed at the time of such disposition; or
o 12 optical fibers and one empty conduit per route
mile on such Segment as deployed at the time of such
disposition.
"PERSON" means any individual, corporation, company, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"PLAN" means any employee benefit plan, retirement plan, deferred
compensation plan, restricted stock plan, health, life, disability or other
insurance plan or program, employee stock purchase plan, employee stock
ownership plan, pension plan, stock option plan or similar plan or arrangement
of the Company or any Restricted Subsidiary of the Company, or any successor
plan thereof, and "Plans" shall have a correlative meaning.
"PREFERRED STOCK" of any Person means Capital Stock of such Person of
any class or classes, however designated, that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding-up of such Person, to shares of Capital
Stock of any other class of such Person.
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"PREFERRED STOCK DIVIDENDS" means all dividends with respect to
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory federal income rate (expressed as a
decimal number between 1 and 0 and determined in accordance with GAAP)
applicable to the issuer of such Preferred Stock for the period during which
such dividends were paid.
"PRINCIPAL" wherever used with reference to the Notes or any Note or
any portion thereof, shall be deemed to include "and premium, if any".
"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. For purposes of any calculation required pursuant to the
Indenture, the value of any Property shall be its Fair Market Value.
"PROPORTIONATE INTEREST" in any issuance of Capital Stock of a
Restricted Subsidiary means a ratio (1) the numerator of which is the aggregate
amount of Capital Stock of such Restricted Subsidiary beneficially owned by the
Company and the Restricted Subsidiaries and (2) the denominator of which is the
aggregate amount of Capital Stock of such Restricted Subsidiary beneficially
owned by all Persons, excluding, in the case of this clause (2), any Investment
made in connection with such issuance.
"PURCHASE MONEY DEBT" means Debt (including Acquired Debt and Capital
Lease Obligations, mortgage financings and purchase money obligations) incurred
for the purpose of financing all or any part of the cost of construction,
installation, acquisition, lease, development or improvement by the Company or
any Restricted Subsidiary of any Telecommunications 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.
"QUALIFIED RECEIVABLE FACILITY" means Debt of the Company or any
Subsidiary Incurred from time to time pursuant to either
o credit facilities secured by Receivables or
o Receivables purchase facilities
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in each case, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, as the same may be
amended, supplemented, modified or restated from time to time.
"RATING AGENCIES" means Moody's and S&P.
"RATING DATE" means the earlier of the date of public notice of the
occurrence of a Change of Control or of the intention of the Company to effect a
Change of Control.
"RATING DECLINE" shall be deemed to have occurred if, no later than 90
days after the Rating Date (which period shall be extended so long as the rating
of the Notes is under publicly announced consideration for possible downgrade by
any of the Rating Agencies), either of the Rating Agencies assigns or reaffirms
a rating to the Notes that is lower than the applicable rating of the notes on
the date of the Indenture or the equivalent thereof. If, prior to the Rating
Date, either of the ratings assigned to the Notes by the Rating Agencies is
lower than the applicable rating of the notes on the date of the Indenture, then
a Rating Decline will be deemed to have occurred if such rating is not changed
by the 90th day following the Rating Date. A downgrade within rating categories,
as well as between rating categories, will be considered a Rating Decline.
"RECEIVABLES" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money and
proceeds and products thereof in each case generated in the ordinary course of
business.
"REGULAR RECORD DATE" for the Interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the _________ or
___________ (whether or not a Business Day) as the case may be, next preceding
such Interest Payment Date.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
vice president (whether or not designated by numbers or words added before or
after the title "vice president"), any assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means
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o a Subsidiary of the Company or of a Restricted Subsidiary that has
not been designated or classified as an Unrestricted Subsidiary
pursuant to and in compliance with Section 3.20 and
o an Unrestricted Subsidiary that is redesignated as a Restricted
Subsidiary pursuant to such covenant.
"RETURNED INVESTMENTS" means, with respect to all Investments made in
Unrestricted Subsidiaries, the aggregate amount of all payments made in respect
of such Investments, other than interest, dividends or other distributions not
in the nature of a return or repurchase of capital or a repayment of principal,
that have been paid or returned, without restriction, to the Company or any
Restricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services or, if Standard & Poor's
Ratings Services shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "S&P" shall mean any other national
recognized rating agency, other than Moody's, that rates debt securities having
a maturity at original issuance of at least one year and that shall have been
designated by the Company.
"SALE AND LEASEBACK TRANSACTION" of any Person means any direct or
indirect arrangement pursuant to which any Property is sold or transferred by
such Person or a Restricted Subsidiary of such person and is thereafter leased
back from the purchaser or transferee thereof by such Person or one of its
Restricted Subsidiaries. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"SEGMENT" means
o with respect to the Company's intercity network, the
through-portion of such network between two local networks and
o with respect to a local network of the Company, the entire
through-portion of such network, excluding the spurs which branch
off the through-portion.
"STATED MATURITY" when used with respect to a Note or any installment
of interest on such note, means the date specified in such Note as the fixed
date on
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which the principal of such Note or such installment of interest is due and
payable, including pursuant to any mandatory redemption provision, but excluding
any provision providing for the repurchase of such Note at the option of the
Holder on such note upon the happening of any contingency beyond the control of
the Company unless such contingency has occurred.
"SUBORDINATED DEBT" means Debt of the Company (a) that is not secured
by any Lien on or with respect to any Property now owned or acquired after the
date of the Indenture and (b) as to which the payment of principal of, and
premium, if any, and interest and other payment obligations in respect of such
Debt shall be subordinate to the prior payment in full in cash of the Notes to
at least the following extent:
(1) no payments of principal of, or premium, if any, or interest
on or otherwise due, including by acceleration or for additional
amounts, in respect of, or repurchases, redemptions or other
retirements of, such Debt may be permitted for so long as any default,
after giving effect to any applicable grace periods, in the payment of
principal, or premium, if any, or interest on the Notes exists,
including as a result of acceleration;
(2) if any other Default exists with respect to the Notes, upon
notice by Holders of 25% or more in aggregate principal amount of the
Notes to the Trustee, the Trustee shall have the right to give notice
to the Company and the Holders of such Debt, or trustees or agents
therefor, of a payment blockage, and thereafter no payments of such
Debt may be made for a period of 179 days from the date of such notice;
provided that not more than one such payment blockage notice may be
given in any consecutive 360-day period, irrespective of the number of
defaults with respect to the Notes during such period;
(3) if payment of such Debt is accelerated when any Notes are
outstanding, no payments of such Debt may be made until three Business
Days after the Trustee receives notice of such acceleration and,
thereafter, such payments may only be made to the extent the terms of
such Debt permit payment at that time; and
(4) such Debt may not
(x) provide for payments of principal of such Debt at
the stated maturity of such Debt or by way of a sinking fund
applicable to such Debt or by way of any mandatory redemption,
defeasance, retirement or repurchase of such Debt by the
Company, including any redemption, retirement or repurchase
which is contingent upon
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events or circumstances but excluding any retirement required
by virtue of acceleration of such Debt upon an event of
default thereunder, in each case prior to the final Stated
Maturity of the Notes or
(y) permit redemption or other retirement, including
pursuant to an offer to purchase made by the Company, of such
Debt at the option of the Holder of such Debt prior to the
final Stated Maturity of the Notes,
other than, in the case of clause (x) or (y), any such payment, redemption or
other retirement, including pursuant to an offer to purchase made by the
Company, which is conditioned upon
o a change of control of the Company pursuant to provisions
substantially similar to those described in Section 3.18 (and
which shall provide that such Debt will not be repurchased
pursuant to such provisions prior to the Company's repurchase of
the Notes required to be repurchased by the Company pursuant to
the provisions described in Section 3.18 or
o a sale or other disposition of assets pursuant to provisions
substantially similar to those described in Section 3.15 (and
which shall provide that such Debt will not be repurchased
pursuant to such provisions prior to the Company's repurchase of
the Notes required to be repurchased by the Company pursuant to
the provision described in Section 3.15.
"SUBSIDIARY" of any Person means:
o a corporation more than 50% of the combined voting power of the
outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such
Person; or
o any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person
and one or more other Subsidiaries of such Person, directly or
indirectly, has at least a majority ownership and power to direct
the policies, management and affairs thereof.
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"TELECOMMUNICATIONS ASSETS" means:
(a) any Property, other than cash, cash equivalents and
securities, to be owned or used by the Company or any Restricted
Subsidiary and used in the Telecommunications Business;
(b) for purposes of the covenants described in Section 3.08 and
Section 3.13 only, Capital Stock of any Person; or
(c) for all other purposes of the Indenture, Capital Stock of a
Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted
Subsidiary from any Person other than an Affiliate of the Company;
provided, however, that, in the case of clause (b) or (c), such Person is
primarily engaged in the Telecommunications Business.
"TELECOMMUNICATIONS BUSINESS" means the business of:
(1) transmitting, or providing services relating to the
transmission of, voice, video, data through owned or leased
transmission facilities or the right to use such facilities;
(2) constructing, creating, developing, operating, managing or
marketing communications networks, related network transmission
equipment, software and other devices for use in a communications
business;
(3) computer outsourcing, data center management, computer systems
integration, reengineering of computer software for any purpose,
including, without limitation, for the purposes of porting computer
software from one operating environment or computer platform to another
or to address issues commonly referred to as "YEAR 2000 ISSUES";
(4) constructing, managing or operating fiber optic
telecommunications networks and leasing capacity on those networks to
third parties;
(5) the sale, resale, installation or maintenance of
communications systems and equipment; or
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(6) evaluating, participating or pursuing any other activity or
opportunity that is primarily related to those identified in (1), (2),
(3), (4) or (5) above;
provided that the determination of what constitutes a Telecommunications
Business shall be made in good faith by the Board of Directors of the Company.
"TREASURY RATE" means, at any date of determination, the yield to
maturity as of such date (as complied by and published in the most recent
Federal Reserve Statistical Release H.15 (519), which has become publicly
available at least two business days prior to the date of the redemption notice
for which such computation is being made, or if such Statistical Release is no
longer published, as reported in any publicly available source or similar market
data) of United States Treasury securities with a constant maturity most nearly
equal to the Make- Whole Average Life; provided however, that if the Make-Whole
Average Life is not equal to the constant maturity of the United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury securities for
which such yields are given, except that if the Make-Whole Average Life is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was originally
executed, and "TIA", when used in respect of an indenture supplemental hereto,
means such Act as in force at the time such indenture supplemental hereto
becomes effective.
"TRUSTEE" means the entity identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"UNRESTRICTED SUBSIDIARY" means
o any Subsidiary of an Unrestricted Subsidiary and
o any Subsidiary of the Company designated as such pursuant to and
in compliance with Section 3.20 and not thereafter redesignated as
a Restricted Subsidiary as permitted pursuant to such section.
"U.S. GOVERNMENT OBLIGATIONS" means securities issued or directly and
fully guaranteed or insured by the United States of America or any agent or
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instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof).
"VOTING STOCK" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors, or persons performing
similar functions, of such Person, whether at all times or only for so long as
no senior class of securities has such voting power by reason of any
contingency.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person, all of the outstanding Voting Stock or other ownership interests, other
than directors' qualifying shares, of which shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"XXXXXXXX INTERCOMPANY ARRANGEMENTS" means the Xxxxxxxx Note and any
other documents, instruments, agreements and arrangements between the Company
and any Restricted Subsidiaries, between any Restricted Subsidiaries or between
the Company or any Restricted Subsidiary, on the one hand, and The Xxxxxxxx
Companies, Inc. or any of its Subsidiaries, on the other hand, in effect on the
date of the Indenture, as such documents, instruments, agreements and
arrangements may be amended, modified or supplemented, but only to the extent
any such amendments, modifications or supplements are approved by a majority of
the members of the Board of Directors of the Company who are disinterested with
respect to such amendment, modification or supplement.
"XXXXXXXX NOTE" means the promissory note of ____________, a subsidiary
of the Company, dated as of ________, 1999, to The Xxxxxxxx Companies, Inc. in
the principal amount as of such date equal to $____ million.
SECTION 1.02. Other Definitions.
Defined in
Term Section
------- ------------
"Acceleration Notice"......................................... 4.02
"Affiliate Transaction"....................................... 3.17
"Agent Members"............................................... 2.07
"beneficial owner"............................................ 3.18
"cash transaction"............................................ 5.13
"Covenant Defeasance"......................................... 10.03
"Designation"................................................. 3.20
"Designation Amount........................................... 3.20
"Global Note"................................................. 2.04
"incorporated provision"...................................... 11.07
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Defined in
Term Section
------- ------------
"Incurrence Date"............................................. 3.08
"Legal Defeasance"............................................ 10.02
"Note Register"............................................... 2.06
"parent corporation".......................................... 3.18
"refinancing"................................................. 3.08
"Registrar"................................................... 2.06
"Required Filing Dates"....................................... 3.19
"Revocation".................................................. 3.20
"self-liquidating paper....................................... 5.13
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF NOTES
SECTION 2.01. Authentication and Delivery of Notes. Upon the execution
and delivery of this Indenture, or from time to time thereafter, Notes in an
aggregate principal amount not in excess of the amount specified in the form of
Note hereinabove recited (except as otherwise provided in Section 2.08) may be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Notes
to or upon the written order of the Company, signed by its Chairman of the Board
of Directors, or any Vice Chairman of the Board of Directors, or its President
or any Vice President (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President") without any
further action by the Company.
SECTION 2.02. Execution of Notes. The Notes shall be signed on behalf
of the Company by its Chairman of the Board of Directors or its President or any
Vice President (whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President"). Such signature may be
the manual or facsimile signatures of the present or any future such officers.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Note so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Note had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution and delivery of this
Indenture any such person was not such officer.
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SECTION 2.03. Certificate of Authentication. Only such Notes as shall
bear thereon a certificate of authentication substantially in the form
hereinabove recited, executed by the Trustee by manual signature of one of its
authorized signatories, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Note executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.04. Form, Denomination and Date of Notes; Payments of
Interest. The Notes and the Trustee's certificates of authentication shall be
substantially in the form recited above. The Notes shall be issuable in
denominations provided for in the form of Note recited above. The Notes shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Company executing the same may determine
with the approval of the Trustee.
Any of the Notes may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, including those required by Section 2.05, or with
the rules of any securities market in which the Notes are admitted to trading,
or to conform to general usage.
Each Note shall be dated the date of its authentication, shall bear
interest from the applicable date and shall be payable on the dates specified on
the face of the form of Note recited above.
The Notes shall be issued initially in the form of one or more global
Notes (a "GLOBAL NOTE") deposited with the Trustee as custodian for the
Depositary.
The person in whose name any Note is registered at the close of
business on any Regular Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Note subsequent to
the Regular Record Date and prior to such Interest Payment Date, except if and
to the extent the Company shall default in the payment of the interest due on
such Interest Payment Date, in which case such defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest, shall be paid to
the persons in whose names outstanding Notes are registered at the close of
business on a subsequent record date (which shall be not less than five Business
Days prior to the date of such payment) established by notice given by mail by
or on behalf of the Company
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to the Holders of Notes not less than 15 days preceding such subsequent record
date.
SECTION 2.05. Global Note Legends. Each Global Note shall bear the
following legends on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE.
SECTION 2.06. Registration, Transfer and Exchange. The Notes are
issuable only in registered form. The Company will keep at each office or agency
to be maintained for the purpose as provided in Section 3.02 (the "REGISTRAR") a
register or registers (the "NOTE REGISTER(S)") in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Notes as in this Article provided. Such Note Register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
Note Register or Note Registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Note at each
such office or agency, the Company shall execute and the Trustee shall
authenticate in accordance with the procedures set forth herein and make
available for delivery in the name of the transferee or transferees a new Note
or Notes in authorized denominations for a like aggregate principal amount.
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A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Note
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee, and any agent of the Company shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and neither the Company, the
Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if the requirements for such transactions set forth herein are met. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Notes at the Registrar's request.
The Company may require payment of a sum sufficient to cover any tax or
other similar governmental charge that may be imposed in connection with any
exchange or registration of transfer of Notes (other than any such transfer
taxes or other similar governmental charge payable upon exchanges pursuant to
Section 2.10, 7.05 or 9.03). No service charge to any Holder shall be made for
any such transaction.
The Company shall not be required to exchange or register a transfer of
(a) any Notes for a period of 15 days next preceding the first mailing of notice
of redemption of Notes to be redeemed, or (b) any Notes selected, called or
being called for redemption except, in the case of any Note where public notice
has been given that such Note is to be redeemed in part, the portion thereof not
so to be redeemed.
All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
SECTION 2.07. Book-Entry Provisions for Global Notes. (a) Each Global
Note shall (1) be registered in the name of the Depositary for such Global Notes
or
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the nominee of such Depositary, (2) be delivered to the Trustee as custodian for
such Depositary and (3) bear legends as set forth in Section 2.05.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the rules and procedures of the Depositary. In
addition, Certificated Securities shall be transferred to all beneficial owners
in exchange for their beneficial interests if (1) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the Global
Note or the Depository ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company within
90 days of such notice or (2) an Event of Default of which a Responsible Officer
of the Trustee has actual notice has occurred and is continuing and the
Registrar has received a request from the Depositary to issue such Certificated
Securities.
(c) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section, such Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Note an equal aggregate principal amount of Certificated
Securities of authorized denominations.
(d) The registered Holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost and Stolen Notes. In
case any temporary or definitive Note shall become mutilated, defaced or be
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apparently destroyed, lost or stolen, the Company in its discretion may execute,
and upon the written request of any officer of the Company, the Trustee shall
authenticate and make available for delivery, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Note, or in lieu of and substitution for the Note so apparently
destroyed, lost or stolen. In every case the applicant for a substitute Note
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as may be required by them to indemnify
and defend and to save each of them harmless and, in every case of destruction,
loss or theft evidence to their satisfaction of the apparent destruction, loss
or theft of such Note and of the ownership thereof.
Upon the issuance of any substitute Note, the Company may require the
payment of a sum sufficient to cover any transfer tax or other similar
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Note which has matured or is about to mature, or has been called for
redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated or defaced Note), if the applicant for such payment
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as any of them may require to save each
of them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Note and of the
ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
by virtue of the fact that any Note is apparently destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the apparently destroyed, lost or stolen Note shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Notes duly authenticated and
delivered hereunder. All Notes shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
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SECTION 2.09. Cancellation of Notes. All Notes surrendered for payment,
redemption, registration of transfer or exchange, if surrendered to the Company
or any agent of the Company or the Trustee, shall be delivered to the Trustee
for cancellation or, if surrendered to the Trustee, shall be cancelled by it;
and no Notes shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. If the Company shall acquire any of the
Notes, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.10. Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and, upon receipt of an order from the Company,
the Trustee shall authenticate and make available for delivery temporary Notes
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Notes shall be issuable as
registered Notes without coupons, of any authorized denomination, and
substantially in the form of the definitive Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may
be determined by the Company with the concurrence of the Trustee. Temporary
Notes may contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Note shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Notes. Without unreasonable
delay the Company shall execute and shall furnish definitive Notes and thereupon
temporary Notes may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for the purpose pursuant to
Section 3.02, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Notes a like aggregate principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.11. CUSIP Numbers. The Company in issuing the Notes may use a
"CUSIP" number (if then generally in use), and the Trustee shall use the CUSIP
number in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as to
the correctness of such number either as printed on the Notes or as contained in
any notice of redemption or exchange and that reliance may be placed only on the
other identification number printed on the Notes. The Company shall promptly
notify the Trustee of any change in the CUSIP number.
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ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE
SECTION 3.01. Payment of Principal and Interest. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Notes at the place or places, at the
respective times and in the manner provided in the Notes. Each installment of
interest on the Notes may be paid by mailing checks for such interest payable to
or upon the written order of the Holders of Notes entitled thereto as they shall
appear on the registry books of the Company, or by wire transfer to such Holders
in immediately available funds, to such bank or other entity in the continental
United States as shall be designated by such Holders and shall have appropriate
facilities for such purpose, or in accordance with the standard operating
procedures of the Depositary.
SECTION 3.02. Offices for Payments, etc. So long as any of the Notes
remain outstanding, the Company will maintain in the Borough of Manhattan, The
City of New York, the following: (a) an office or agency where the Notes may be
presented for payment, (b) an office or agency where the Notes may be presented
for registration of transfer and for exchange as in this Indenture provided and
(c) an office or agency where notices and demands to or upon the Company in
respect of the Notes or of this Indenture may be served. The Company will give
to the Trustee written notice of the location of any such office or agency and
of any change of location thereof. The Company hereby initially designates the
Corporate Trust Office of the Trustee as the office or agency for each such
purpose. In case the Company shall fail to maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 3.04. Paying Agents. Whenever the Company shall appoint a
paying agent other than the Trustee, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Notes (whether such sums have
been paid to it
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by the Company or by any other obligor on the Notes) in trust for the benefit of
the Holders of the Notes or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Notes) to make any payment of the principal of
or interest on the Notes when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance of
the failure referred to in clause (b) above.
The Company will, prior to each due date of the principal of or
interest on the Notes, deposit with the paying agent a sum sufficient to pay
such principal or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of or interest on the Notes, set aside, segregate
and hold in trust for the benefit of the Holders of the Notes a sum sufficient
to pay such principal or interest so becoming due. The Company will promptly
notify the Trustee of any failure to take such action.
Anything in the prior two paragraphs to the contrary notwithstanding,
in connection with any payment of principal and interest, the Company will, for
so long as the Depository is a Holder of the Notes, deposit sums with the paying
agent sufficient to pay such amounts not later than the time required by the
Depository's rules and regulations as in effect at the time such payment is due.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by the Company or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section are subject to the provisions
of Section 10.05 and Section 10.06.
SECTION 3.05. Certificates to Trustee. (a) The Company will deliver to
the Trustee within 90 days after the end of each fiscal year of the Company a
certificate from the principal executive, financial or accounting officer of the
Company stating that such officer has conducted or supervised a review of the
activities of the Company and its Restricted Subsidiaries and the Company's and
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its Restricted Subsidiaries' performance under this Indenture and that, to the
best of such officer's knowledge, based upon such review, there has been no
Default that is continuing thereunder or, if there has been a Default in the
fulfillment of any such obligation, specifying each such Default and the nature
and status thereof.
(b) The Company will deliver to the Trustee, as soon as possible and
in any event within 30 days after the occurrence thereof, written notice in the
form of an Officers' Certificate of any event which with the giving of notice
and the lapse of time would become an Event of Default, setting forth the status
of such event and what action the Company is taking or proposes to take with
respect thereto.
(c) The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company a written statement by the Company's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination, any Default that is continuing has come to their attention and, if
such a Default has come to their attention, specifying the nature and period of
the existence thereof.
SECTION 3.06. Noteholders' Lists. If and so long as the Trustee shall
not be the Registrar, the Company will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Notes pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semi-annually not more than 15 days after each Regular
Record Date as of such Regular Record Date, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Company
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.07. Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act of 1939, the Trustee shall, within sixty days after each
August 15 following the date of this Indenture deliver to Holders a brief
report, dated as of such August 15, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Notes are listed, with the Commission and with the Company. The Company will
promptly notify the Trustee when the Notes are listed on any stock exchange or
of any delisting thereof.
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SECTION 3.08. Limitation on Consolidated Debt. (a) The Company may not,
and may not permit any Restricted Subsidiary to, directly or indirectly, Incur
any Debt, unless, after giving pro forma effect to such Incurrence and the
receipt and application of the net proceeds of such Incurrence, no Default or
Event of Default would occur as a consequence of such Incurrence or be
continuing following such Incurrence and either
(1) the ratio of (A) the aggregate consolidated principal amount
(or, in the case of Debt issued at a discount, the then Accreted Value)
of Debt of the Company outstanding as of the most recent available
quarterly or annual balance sheet, after giving pro forma effect to
o the Incurrence of such Debt and any other Debt
Incurred and that remains outstanding on the date as
of which the Debt to be Incurred is to be Incurred
(the "INCURRENCE DATE") since such balance sheet date
and the receipt and application of the net proceeds
thereof, in each case as if such Incurrence, receipt
and application had occurred on such balance sheet
date, and
o the repayment, repurchase, retirement or
extinguishment of any Debt since such balance sheet
date, as if such repayment, repurchase, retirement or
extinguishment had occurred on such balance sheet
date, to
(B) Consolidated Cash Flow Available for Fixed Charges
for the four full fiscal quarters next preceding the
Incurrence of such Debt for which consolidated financial
statements are available, determined on a pro forma basis as
if any such Debt had been Incurred and the proceeds of such
Debt had been applied, and any material Investment in, or
acquisition or disposition of, any material asset outside the
ordinary course of business consummated during, or since the
end of, such period of four fiscal quarters had occurred at
the beginning of such four fiscal quarters,
would be less than 5.0 to 1.0; or
(2) The Company's Consolidated Capital Ratio is less than 2.25 to
1.0 as of the most recent available quarterly or annual balance sheet,
after giving pro forma effect to
o the Incurrence of such Debt and any other Debt
Incurred and that remains outstanding on the
Incurrence Date since
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such balance sheet date as if such Incurrence had
occurred on such balance sheet date,
o the repayment, repurchase, retirement or
extinguishment of any Debt since such balance sheet
date, as if such repayment, repurchase or
extinguishment had occurred on such balance sheet
date,
o the issuance of any Capital Stock (other than
Disqualified Stock) of the Company since such balance
sheet date, including the issuance of any Capital
Stock to be issued concurrently with the Incurrence
of such Debt, as of such Incurrence had occurred on
such balance sheet date, and
o the receipt and application of the net proceeds of
such Debt or Capital Stock, as the case may be, as if
such receipt and application of the proceeds
therefrom had occurred on the balance sheet date.
(b) The restrictions in paragraph (a) do not prevent the Company or
any Restricted Subsidiary from Incurring any and all of the following, each of
which shall be given independent effect:
(1) Debt under the Notes, the Indenture or any Domestic Restricted
Subsidiary Guarantee;
(2) Debt under Credit Facilities in an aggregate principal amount
outstanding or available (together with all refinancing Debt
outstanding or available pursuant to clause (8) below in respect of
Debt previously Incurred pursuant to this clause (2) at any one time
not to exceed the greater of
(x) $2.0 billion, less
o the amount of all mandatory principal
payments actually made by the Company or any
Restricted Subsidiary in respect of term
loans thereunder (excluding any such
payments to the extent refinanced at the
time of payment under a new Credit Facility)
and
o in the case of a revolving facility, reduced
by any required permanent repayments
actually made
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(which are accompanied by a corresponding
permanent commitment reduction) under the
revolving facility (excluding any such
repayments and commitment reductions to the
extent refinanced and replaced at the time
under a new Credit Facility), and
(y) 85% of the Eligible Receivables;
(3) Purchase Money Debt; provided that the amount of such Purchase
Money Debt does not exceed 100% of the cost of the construction,
installation, acquisition, lease, development or improvement of the
applicable Telecommunications Assets;
(4) Subordinated Debt of the Company; provided, however, that the
aggregate principal amount of such Debt, together with any other
outstanding Debt Incurred pursuant to this clause (4), shall not exceed
$500 million at any one time (which amount shall be permanently reduced
by the amount of Net Available Proceeds used to repay Subordinated Debt
of the Company, and not reinvested in Telecommunications Assets or used
to purchase Notes or repay other Debt, pursuant to the covenant
described in Section 3.15), except to the extent such Debt in excess of
$500 million
(A) is subordinated to all other Debt of the Company
other than Debt Incurred pursuant to this clause (4) in excess
of such $500 million limitation,
(B) does not provide for the payment of cash interest on
such Debt prior to the Stated Maturity of the Notes and
(C) does not
o provide for payments of principal of such
Debt at stated maturity or by way of a
sinking fund applicable to the payment of
such Debt or by way of any mandatory
redemption, defeasance, retirement or
repurchase thereof by the Company (including
any redemption, retirement or repurchase
which is contingent upon events or
circumstances, but excluding any retirement
required by virtue of the acceleration of
any payment with respect to such Debt upon
any event of default under such Debt), in
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each case on or prior to the Stated
Maturity of the Notes, and
o permit redemption or other retirement
(including pursuant to an offer to purchase
made by the Company) of such Debt at the
option of the holder of such Debt on or
prior to the Stated Maturity of the Notes,
other than, in the case of these points under (C) a redemption or retirement at
the option of the holder of such Debt, including pursuant to an offer to
purchase made by the Company, which is conditioned upon a change of control or
asset disposition pursuant to provisions substantially similar to those
described in Section 3.15 and Section 3.18;
(5) Debt outstanding on the date of the Indenture;
(6) Debt owed by the Company to any Restricted Subsidiary of the
Company or Debt owed by a Restricted Subsidiary of the Company to the
Company or a Restricted Subsidiary of the Company; provided, however,
that
o upon any subsequent transfer, conveyance or other
disposition by any such Restricted Subsidiary or the
Company of any Debt so permitted to a Person other
than the Company or another Restricted Subsidiary of
the Company or
o if for any reason such Restricted Subsidiary ceases
to be a Restricted Subsidiary,
the provisions of this clause (6) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been Incurred by the issuer
thereof at the time of such transfer, conveyance or other disposition
or when such Restricted Subsidiary ceases to be a Restricted
Subsidiary;
(7) Debt Incurred by a Person prior to the time
(A) such Person became a Restricted Subsidiary,
(B) such Person merges into or consolidates with a
Restricted Subsidiary or
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(C) another Restricted Subsidiary merges into or
consolidates with such Person, in a transaction in which such
Person becomes a Restricted Subsidiary, which Debt was not
Incurred with, or in anticipation of, such transaction or such
Person becoming a Restricted Subsidiary;
(8) Debt Incurred to renew, extend, refinance, defease, repay,
replace, prepay, repurchase, redeem, retire, exchange or refund (each,
a "REFINANCING") Debt Incurred pursuant to clause (1), (2), (3), (5),
(7), (12) or (13) of this paragraph (b) or this clause (8), in an
aggregate principal amount, or if issued at a discount, the then
Accreted Value, not to exceed the aggregate principal amount, or if
issued at a discount, the then Accreted Value, of and accrued interest
on the Debt so refinanced plus the amount of any premium, accrued
interest, prepayment penalties, fees and expenses required to be paid
with such refinancing pursuant to the terms of the Debt so refinanced
or the amount of any premium or accrued interest reasonably determined
by the Board of Directors of the Company as necessary to accomplish
such refinancing by means of a redemption, tender offer or privately
negotiated repurchase plus the amount of fees and expenses incurred
with such redemption, tender offer or privately negotiated repurchase;
provided, however, that
o the refinancing Debt shall not be senior in right of
payment to the Debt that is being refinanced and
o in the case of any refinancing of Debt Incurred
pursuant to clause (1), (5), (7) or (12) or, if such
Debt previously refinanced Debt Incurred pursuant to
any such clause, this clause (8), the refinancing
Debt by its terms, or by the terms of any agreement
or instrument pursuant to which such Debt is issued,
(x) does not provide for payments of principal of such Debt at stated
maturity or by way of a sinking fund applicable to the payment of such
Debt or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof by the Company, including any redemption, retirement
or repurchase which is contingent upon events or circumstances, but
excluding any retirement required by virtue of the acceleration of any
payment with respect to such Debt upon any event of default under such
Debt, in each case prior to the time the same are required by the terms
of the Debt being refinanced and
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(y) does not permit redemption or other retirement, including
pursuant to an offer to purchase made by the Company, of such Debt at
the option of the holder of such Debt prior to the time the same are
required by the terms of the Debt being refinanced, other than, in the
case of clause (x) or (y), any such payment, redemption or other
retirement, including pursuant to an offer to purchase made by the
Company, which is conditioned upon a change of control or asset sale
pursuant to provisions substantially similar to those in Section 3.15
and Section 3.18.
provided further that the above clauses (x) and (y) and the limitation on the
aggregate principal amount referred to above in this clause (8) shall not apply
to any refinancing of all of the Notes then outstanding;
(9) Debt
(A) in respect of performance, surety or appeal bonds,
Guarantees, letters of credit or reimbursement obligations
Incurred or provided in the ordinary course of business
securing the performance of contractual, franchise, lease,
self-insurance or license obligations and not in connection
with the Incurrence of Debt or
(B) in respect of customary agreements providing for
indemnification, adjustment of purchase price after closing,
or similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any such
obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, Incurred in
connection with the disposition of any business, assets or
Restricted Subsidiary of the Company (other than Guarantees of
Debt Incurred by any Person acquiring all or any portion of
such business, assets or Restricted Subsidiary of the Company
for the purpose of financing such acquisition) and in an
aggregate principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary
in connection with such disposition;
(10) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(11) Debt secured by Receivables originated by the Company or any
Restricted Subsidiary and related assets; provided that such Debt is
nonrecourse to the Company and any of its other Restricted
Subsidiaries; provided further, that Receivables shall not be available
at any time to
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secure Debt under this clause to the extent that they are used as the
basis for the Incurrence of Debt pursuant to clause (2) (y) of this
paragraph (b);
(12) Debt Incurred after the date of the Indenture pursuant to the
Xxxxxxxx Note, including Debt Incurred in lieu of payments under the
Xxxxxxxx Intercompany Arrangements and any accrual of interest that is
capitalized under, or added to the principal amount of, the Xxxxxxxx
Note; provided that the aggregate amount of such Debt Incurred in lieu
of payments under the Xxxxxxxx Intercompany Arrangements, other than in
respect of any such accrual of interest, in reliance on this clause
(12) does not exceed $25 million in any 12-month period;
(13) Debt Incurred pursuant to the lease, dated as of September 2,
1998, between 1998 WCI Trust, as lessor, and Xxxxxxxx Communications,
Inc., as lessee, in an aggregate principal amount not to exceed $750
million at any one time outstanding; and
(14) Debt not otherwise permitted to be Incurred pursuant to
clauses (1) through (13) above, which, together with any other
outstanding Debt Incurred pursuant to this clause (14), has an
aggregate principal amount not in excess of $50 million at any time
outstanding.
Notwithstanding any other provision of this Section, the maximum amount
of Debt that the Company or a Restricted Subsidiary may Incur pursuant to this
Section will not be exceeded solely as a result of fluctuations in the exchange
rates of currencies.
For purposes of determining any particular amount of Debt under this
Section:
o Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such
particular amount shall not be included; and
o any Liens granted for the benefit of the Notes pursuant to the
equal and ratable provisions referred to in the covenant described
in Section 3.13 shall not be treated as Debt.
For purposes of determining compliance with this Section, if an item of
Debt meets the criteria of more than one of the types of Debt described in the
above clauses, the Company, in its sole discretion, may classify such item of
Debt and only be required to include the amount and type of such Debt in one of
such
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clauses, but also may classify a portion of such item of Debt in more than one
of such clauses and in any order the Company so chooses.
SECTION 3.09. Limitation on Debt of Restricted Subsidiaries. The
Company may not permit any Restricted Subsidiary that is not a Guarantor to
Incur any Debt except any and all of the following, each of which shall be given
independent effect:
(1) Domestic Restricted Subsidiary Guarantees;
(2) Debt outstanding on the date of the Indenture;
(3) Debt of Restricted Subsidiaries under Credit Facilities
permitted to be Incurred pursuant to clause (2) of paragraph (b) of
Section 3.08;
(4) Purchase Money Debt of Restricted Subsidiaries permitted to be
Incurred pursuant to clause (3) of paragraph (b) of Section 3.08;
(5) Debt owed by a Restricted Subsidiary to the Company or a
Restricted Subsidiary of the Company permitted to be Incurred pursuant
to clause (6) of paragraph (b) of Section 3.08;
(6) Debt of Restricted Subsidiaries consisting of Permitted
Interest Rate or Currency Protection Agreements permitted to be
Incurred pursuant to clause (10) of paragraph (b) of Section 3.08;
(7) Debt of Restricted Subsidiaries permitted to be Incurred under
clause (7) of paragraph (b) of Section 3.08;
(8) Debt of Restricted Subsidiaries permitted to be Incurred under
clause (9) or (14) of paragraph (b) of Section 3.08;
(9) Debt of Restricted Subsidiaries secured by Receivables
originated by the Company or any Restricted Subsidiary and related
assets permitted to be Incurred under clause (11) of paragraph (b) of
Section 3.08;
(10) Debt permitted to be Incurred pursuant to clause (12) of
paragraph (b) of Section 3.08;
(11) Debt Incurred pursuant to the lease, dated as of September 2,
1998, between 1998 WCI Trust, as lessor, and Xxxxxxxx Communications,
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Inc., as lessee, in an aggregate principal amount not to exceed $750
million at any one time outstanding; and
(12) Debt which is Incurred to refinance any Debt of a Restricted
Subsidiary permitted to be Incurred pursuant to clauses (1), (2), (3),
(4), (7), (10) or (11) of this paragraph or this clause (12), in an
aggregate principal amount (or if issued at a discount, the then
Accreted Value) not to exceed the aggregate principal amount (or if
issued at a discount, the then Accreted Value) of the Debt so
refinanced, plus the amount of any premium, prepayment penalties,
accrued interest, fees and expenses required to be paid for such
refinancing pursuant to the terms of the Debt so refinanced or the
amount of any premium or accrued interest reasonably determined by the
Board of Directors of the Company as necessary to accomplish such
refinancing by means of a redemption, tender offer or privately
negotiated repurchase, plus the amount of fees and expenses of the
Company and the applicable Restricted Subsidiary Incurred with such
refinancing; provided, however, that, in the case of any refinancing of
Debt Incurred pursuant to clause (1), (2) or (7) or, if such Debt
previously refinanced Debt Incurred pursuant to any such clause, this
clause (12), the refinancing Debt by its terms, or by the terms of any
agreement or instrument pursuant to which such Debt is issued,
(x) does not provide for payments of principal at the
stated maturity of such Debt or by way of a sinking fund
applicable to such Debt or by way of any mandatory redemption,
defeasance, retirement or repurchase of such Debt by the
Company or any Restricted Subsidiary, including any
redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required
by virtue of acceleration of such Debt upon an event of
default thereunder, in each case prior to the time the same
are required by the terms of the Debt being refinanced and
(y) does not permit redemption or other retirement,
including pursuant to an offer to purchase made by the Company
or a Restricted Subsidiary, of such Debt at the option of the
holder of such Debt prior to the stated maturity of the Debt
being refinanced,
other than, in the case of clause (x) or (y), any such payment, redemption or
other retirement, including pursuant to an offer to purchase made by the Company
or a Restricted Subsidiary, which is conditioned upon the change of control or
asset sale of the Company pursuant to provisions substantially similar to those
in Section 3.15 and Section 3.18;
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provided further that the above clauses (x) and (y) and the limitation on the
aggregate principal amount referred to above in this clause (12) shall not apply
to any refinancing of all of the Notes then outstanding.
Notwithstanding any other provision of this Section, the maximum amount
of Debt that a Restricted Subsidiary may Incur pursuant to this Section will not
be exceeded solely as a result of fluctuations in the exchange rates of
currencies.
For purposes of determining any particular amount of Debt under this
Section, Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such particular
amount shall not be included. For purposes of determining compliance with this
Section, if an item of Debt meets the criteria of more than one of the types of
Debt described in the above clauses, the Company, in its sole discretion, may
classify such item of Debt and only be required to include the amount and type
of such Debt in one of such clauses, but also may classify a portion of such
item of Debt in more than one of such clauses and in any order the Company so
chooses.
SECTION 3.10. Limitation on Issuances of Guarantees by, and Debt
Securities of, Domestic Restricted Subsidiaries. The Company will not permit any
of its Domestic Restricted Subsidiaries, directly or indirectly, to issue or
Guarantee any Debt Securities, unless such Domestic Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to the Indenture
providing for the Guarantee of the payment of the Notes by such Domestic
Restricted Subsidiary, which Guarantee shall be senior to or rank equally with
such Debt Securities.
Any such Guarantee by a Domestic Restricted Subsidiary of the Notes
shall provide by its terms that it shall be automatically and unconditionally
released and discharged upon a sale or other disposition, by way of merger or
otherwise, to any Person not an Affiliate of the Company, of the Company's
equity interest in, or the assets of, such Domestic Restricted Subsidiary, which
sale or other disposition results in such Domestic Restricted Subsidiary ceasing
to be a Domestic Restricted Subsidiary and such sale or other disposition is
made in compliance with, and the Net Available Proceeds therefrom are applied in
accordance with, the applicable provisions of the Indenture.
The form of such supplemental indenture is attached as an exhibit to
the Indenture. The foregoing provisions will not be applicable to:
o Guarantees of Debt Securities of a Person by its subsidiaries in
effect prior to the time such Person is merged with or into or
became a Domestic Restricted Subsidiary, provided that such
Guarantees do not
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extend to any other Debt Securities of such Person or any other
Person; and
o any one or more Guarantees of up to $100 million in aggregate
principal amount of Debt Securities of the Company or any Domestic
Restricted Subsidiary at any time outstanding.
SECTION 3.11. Limitation on Restricted Payments. (a) The Company:
(1) may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, declare or pay any dividend, or make any
distribution, in respect of its Capital Stock or to the holders of its
Capital Stock, excluding any dividends or distributions which are made
solely to the Company or a Restricted Subsidiary (and, if such
Restricted Subsidiary declaring, paying or making any such dividend or
distribution is not a Wholly Owned Subsidiary, to the other
stockholders or equity owners of such Restricted Subsidiary on a pro
rata basis or on a basis that results in the receipt by the Company or
a Restricted Subsidiary of dividends or distributions of greater value
than it would receive on a pro rata basis) or any dividends or
distributions payable solely in shares of Capital Stock of the Company,
other than Disqualified Stock, or in options, warrants or other rights
to acquire Capital Stock of the Company, other than Disqualified Stock;
(2) may not, and may not permit any Restricted Subsidiary to,
purchase, redeem, or otherwise retire or acquire for value
o any Capital Stock of the Company or any Restricted
Subsidiary of the Company or
o any options, warrants or rights to purchase or
acquire shares of Capital Stock of the Company or any
Restricted Subsidiary or any securities convertible
or exchangeable into shares of Capital Stock of the
Company or any Restricted Subsidiary,
except, in any such case, any such purchase, redemption or retirement
or acquisition for value
o paid to the Company or a Restricted Subsidiary (or,
in the case of any such purchase, redemption or other
retirement or acquisition for value with respect to a
Restricted Subsidiary that is not a Wholly Owned
Subsidiary, to the
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other stockholders or equity owners of such
Restricted Subsidiary on a pro rata basis or on a
basis that results in the receipt by the Company or a
Restricted Subsidiary of payments of greater value
than it would receive on a pro rata basis) or
o paid solely in shares of Capital Stock, other than
Disqualified Stock, of the Company;
(3) may not make, or permit any Restricted Subsidiary to make, any
Investment, other than an Investment in the Company or a Restricted
Subsidiary or a Permitted Investment, in any other Person, including
the Designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, or the Revocation of any such Designation, according to
Section 3.20;
(4) may not, and may not permit any Restricted Subsidiary to,
redeem, defease, repurchase, retire or otherwise acquire or retire for
value, prior to any scheduled maturity, repayment or sinking fund
payment, Debt of the Company which is subordinate in right of payment
to the Notes (other than any redemption, defeasance, repurchase,
retirement or other acquisition or retirement for value made in
anticipation of satisfying a scheduled maturity, repayment or sinking
fund obligation due within one year thereof); and
(5) may not, and may not permit any Restricted Subsidiary to,
issue, transfer, convey, sell or otherwise dispose of Capital Stock of
any Restricted Subsidiary to a Person other than the Company or another
Restricted Subsidiary if the result thereof is that such Restricted
Subsidiary shall cease to be a Restricted Subsidiary, in which event
the amount of such "Restricted Payment" shall be the Fair Market Value
of the remaining interest, if any, in such former Restricted Subsidiary
held by the Company and the other Restricted Subsidiaries;
each of clauses (1) through (5) being a "RESTRICTED PAYMENT," if:
(A) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be
continuing; or
(B) upon giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Debt
pursuant to the terms of the Indenture described in paragraph
(a) of Section 3.08; or
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(C) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments made on or after the date
of the Indenture, plus Permitted Investments made on or after
the date of the Indenture pursuant to clause (i) or (n) of the
definition thereof, other than any such Permitted Investments
that are Permitted Investments in the Company or any
Restricted Subsidiary (the amount of any such Restricted
Payment or Permitted Investment, if made other than in cash,
to be based upon Fair Market Value), exceeds the sum of:
o 50% of cumulative Consolidated Net Income (or, in the
case that Consolidated Net Income shall be negative,
100% of such negative amount) since June 30, 1999
through the last day of the last full fiscal quarter
for which consolidated financial statements are
available;
o in the case of any Revocation made after the date of
the Indenture, an amount equal to the lesser of the
portion (proportionate to the Company's direct or
indirect equity interest in the Subsidiary to which
such Revocation relates) of the Fair Market Value of
the net assets of such Subsidiary at the time of
Revocation and the amount of Investments previously
made (and treated as a Restricted Payment) by the
Company or any Restricted Subsidiary in such
Subsidiary; and
o the aggregate amount of Returned Investments since
the date of the Indenture and on or prior to the date
of such Restricted Payment;
provided, however, that the Company or a Restricted Subsidiary of
the Company may, without regard to the limitations in clause (C)
but subject to clauses (A) and (B), make Restricted Payments in an
aggregate amount not to exceed the sum of $50 million and the
aggregate net cash proceeds received after the date of the
Indenture
(1) as capital contributions to the Company, or proceeds
from the issuance, other than to a Subsidiary, of Capital
Stock, other than Disqualified Stock, of the Company and
options, warrants or rights to purchase or acquire shares of
Capital Stock (other than Disqualified Stock) of the Company,
and
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(2) from the issuance or sale of Debt of the Company or
any Restricted Subsidiary, other than to a Subsidiary, the
Company or a Plan, that after the date of the Indenture has
been converted into or exchanged for Capital Stock, other than
Disqualified Stock, of the Company;
provided, further, that in the case of the issuance of Capital Stock of
the Company to any Plan, if such Plan Incurs any Debt for the purpose
of purchasing such Capital Stock, the aggregate net cash proceeds from
such issuance shall be included for purposes of the above proviso only
to the extent of any increase in the Consolidated Net Worth of the
Company resulting from principal repayments made with respect to the
Debt Incurred to finance the purchase of such Capital Stock.
The aggregate net cash proceeds referred to in the immediately
preceding clauses (x) and (y) shall not be utilized to make Restricted Payments
pursuant to such clauses to the extent such proceeds have been utilized to make
Permitted Investments under clause (i) of the definition of "Permitted
Investments."
(b) The restrictions in paragraph (a) do not prevent the following:
(1) The Company or any Restricted Subsidiary may pay any dividend
on Capital Stock of any class of the Company within 60 days after the
declaration of such dividend if, on the date when the dividend was
declared, the Company or such Restricted Subsidiary, as the case may
be, could have paid such dividend in accordance with the above
provisions; provided, however, that at the time of such payment of such
dividend, no other Event of Default shall have occurred and be
continuing, or result from, the payment of such dividend;
(2) The Company or any Restricted Subsidiary may repurchase,
redeem, acquire, cancel or otherwise retire for value any shares of its
Common Stock or options to acquire its Common Stock from Persons who
are currently or were formerly directors, officers or employees of the
Company or any of its Subsidiaries or other Affiliates, or their
estates or beneficiaries under their estates, or from any Plan, upon
death, disability, retirement or termination of employment in an amount
not to exceed $3 million in any 12-month period;
(3) The Company and any Restricted Subsidiary may refinance any
Debt otherwise permitted by clause (8) of paragraph (b) of Section 3.08
or clause (12) of Section 3.09;
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(4) The Company and any Restricted Subsidiary may retire or
repurchase any Capital Stock of the Company or of any Restricted
Subsidiary or any Subordinated Debt of the Company in exchange for, or
out of the proceeds of the substantially concurrent sale, other than to
a Subsidiary of the Company or any Plan, of, Capital Stock, other than
Disqualified Stock, of the Company; provided that the proceeds from any
such exchange or sale of Capital Stock shall be excluded from any
calculation pursuant to clause (b) of the definition of "Invested
Capital";
(5) The Company or any Restricted Subsidiary may purchase shares
of Capital Stock of the Company or any Restricted Subsidiary of the
Company for the purpose of contributing such shares to any Plan;
provided that all such purchases referred to in this clause (5) may not
exceed $10 million in any 12-month period;
(6) The Company or any Restricted Subsidiary may purchase all, but
not less than all, excluding directors' qualifying shares, of the
Capital Stock or other ownership interests in a Subsidiary of the
Company which Capital Stock or other ownership interests were not until
that time owned by the Company or a Subsidiary of the Company such that
after giving effect to such purchase such Subsidiary becomes a Wholly
Owned Subsidiary of the Company;
(7) The Company or any Restricted Subsidiary may redeem, defease,
repurchase, retire or acquire for value any Subordinated Debt upon a
Change of Control or Asset Disposition to the extent required by the
Indenture or other agreement pursuant to which such Subordinated Debt
was issued, but only if the Company has first complied with its
obligations under Section 3.15 and Section 3.18; and
(8) The Company or any Restricted Subsidiary may make
distributions to the stockholders or equity owners of Restricted
Subsidiaries that are partnerships, limited liability companies that
are treated as partnerships for U.S. tax purposes or other similar
pass-through entities in order to reimburse or compensate such other
stockholders or equity owners for income taxes attributable to the
operations of such Restricted Subsidiaries as required by the formation
agreement, operating agreement or partnership agreement or similar
governing document of the Restricted Subsidiary.
The Restricted Payments described in the foregoing clauses (1), (2),
(5), (6) and (7) shall be included in the calculation of Restricted Payments;
the
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Restricted Payments described in clauses (3), (4) and (8) shall be excluded
in the calculation of Restricted Payments.
SECTION 3.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. (a) The Company may not, and may not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction, other than pursuant to law or regulation, on the ability of any
Restricted Subsidiary:
(1) to pay dividends, in cash or otherwise, or make any other
distributions in respect of its Capital Stock owned by the Company or
any other Restricted Subsidiary or pay any Debt or other obligation
owed to the Company or any other Restricted Subsidiary,
(2) to make loans or advances to the Company or any other
Restricted Subsidiary, or
(3) to transfer any of its Property to the Company or any other
Restricted Subsidiary.
(b) Despite the above limitation, the Company may, and may permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist:
(1) any encumbrance or restriction pursuant to any agreement in
effect on the date of the Indenture and pursuant to the Permanent
Credit Facility (or, in each case, encumbrances or restrictions that
are substantially similar taken as a whole);
(2) any customary (as conclusively determined in good faith by the
Chief Financial Officer of the Company) encumbrance or restriction
applicable to a Restricted Subsidiary that is contained in an agreement
or instrument governing or relating to Debt contained in any Credit
Facilities or Purchase Money Debt; provided that such encumbrances and
restrictions do not prohibit the distribution of funds to the Company
in an amount sufficient for the Company to make the timely payment of
interest, premium, if any, and principal (whether at stated maturity,
by way of a sinking fund applicable thereto, by way of any mandatory
redemption, defeasance, retirement or repurchase thereof, including
upon the occurrence of designated events or circumstances or by virtue
of acceleration upon an event of default, or by way of redemption or
retirement at the option of the holder of the Debt, including pursuant
to offers to purchase) according to the terms of the Indenture and the
Notes
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and other Debt that is solely an obligation of the Company, but
provided further that such agreement may nevertheless contain customary
(as so determined) net worth, restricted payment, leverage, interest
coverage invested capital and other financial covenants, customary (as
so determined) covenants regarding the merger of or sale of all or any
substantial part of the assets of the Company or any Restricted
Subsidiary, customary (as so determined) restrictions on transactions
with affiliates and customary (as so determined) subordination
provisions governing Debt owed to the Company or any Restricted
Subsidiary,
(3) any encumbrance or restriction pursuant to an agreement
relating to any Acquired Debt, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person,
other than the Person so acquired,
(4) any encumbrance or restriction pursuant to an agreement
effecting a refinancing of Debt Incurred pursuant to an agreement
referred to in clause (1), (2) or (3) of this paragraph (b); provided,
however, that the provisions contained in such agreement relating to
such encumbrance or restriction are no more restrictive (as so
determined) in any material respect than the provisions contained in
the agreement governing the Debt being refinanced;
(5) in the case of clause (3) of paragraph (a) above, any
encumbrance or restriction contained in any security agreement
(including a Capital Lease Obligation) securing Debt of the Company or
a Restricted Subsidiary otherwise permitted under the Indenture, but
only to the extent such restrictions restrict the transfer of the
Property subject to such security agreement;
(6) in the case of clause (3) of paragraph (a) above, customary
provisions
o that restrict the subletting, assignment or transfer
of any Property that is a lease, license, conveyance
or similar contract,
o contained in asset sale or other asset disposition
agreements limiting the transfer of the Property
being sold or disposed of pending the closing of such
sale or disposition or
o arising or agreed to in the ordinary course of
business, not relating to any Debt, and that do not,
individually or in the
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aggregate, detract from the value of Property of the
Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary,
(7) any encumbrance or restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement which has been entered into
for the sale or disposition of all or substantially all of the Capital
Stock or Property of such Restricted Subsidiary, provided that the
consummation of such transaction would not result in a Default or an
Event of Default, that such restriction terminates if such transaction
is abandoned and that the consummation or abandonment of such
transaction occurs within one year of the date such agreement was
entered into;
(8) any encumbrance or restriction pursuant to the Indenture and
the Notes (or encumbrances or restrictions that are substantially
similar taken as a whole); and
(9) Permitted Liens.
SECTION 3.13. Limitation on Liens. The Company may not, and may not
permit any Restricted Subsidiary to, directly or indirectly, Incur or suffer to
exist any Lien on or with respect to any Property now owned or acquired after
the date of the Indenture to secure any Debt without making, or causing such
Restricted Subsidiary to make, effective provision for securing the Notes
o equally and ratably with such Debt as to such Property for so long
as such Debt will be so secured or
o in the event such Debt is Debt of the Company or a Guarantor which
is subordinate in right of payment to the Notes or the applicable
Domestic Restricted Subsidiary Guarantee, prior to such Debt as to
such Property for so long as such Debt will be so secured.
These restrictions shall not apply to:
(1) Liens existing on the date of the Indenture;
(2) Liens Incurred on or after the date of the Indenture pursuant
to any Credit Facility to secure Debt permitted to be Incurred pursuant
to clause (2) of paragraph (b) of Section 3.08;
(3) Liens securing Debt in an amount which, together with the
aggregate amount of Debt then outstanding or available under all Credit
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Facilities (together with all refinancing Debt then outstanding or
available pursuant to clause (8) of paragraph (b) of Section 3.08 in
respect of Debt previously Incurred under Credit Facilities), does not
exceed 1.5 times the Company's Consolidated Cash Flow Available for
Fixed Charges for the four full fiscal quarters preceding the
Incurrence of such Lien for which the Company's consolidated financial
statements are available, determined on a pro forma basis as if such
Debt had been Incurred and the proceeds thereof had been applied at the
beginning of such four fiscal quarters;
(4) Liens in favor of the Company or any Restricted Subsidiary;
provided, however, that any subsequent issue or transfer of Capital
Stock or other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of the
Debt secured by any such Lien, except to the Company or a Restricted
Subsidiary, shall be deemed, in each case, to constitute the Incurrence
of such Lien by the issuer thereof,
(5) Liens to secure Purchase Money Debt permitted to be Incurred
pursuant to clause (3) of paragraph (b) of Section 3.08; provided that
any such Lien may not extend to any Property other than the
Telecommunications Assets installed, constructed, acquired, leased,
developed or improved with the proceeds of such Purchase Money Debt and
any improvements or accessions thereto (it being understood that all
Debt to any single lender or group of related lenders or outstanding
under any single credit facility, and in any case relating to the same
group or collection of Telecommunications Assets financed thereby,
shall be considered a single Purchase Money Debt, whether drawn at one
time or from time to time);
(6) Liens to secure Acquired Debt; provided that
o such Lien attaches to the acquired Property prior to
the time of the acquisition of such Property and
o such Lien does not extend to or cover any other
Property,
(7) Liens to secure Debt permitted to be Incurred pursuant to
clause (13) of paragraph (b) of Section 3.08;
(8) Liens to secure Debt Incurred to refinance, in whole or in
part, Debt secured by any Lien referred to in the foregoing clauses
(1), (2), (5), (6) and (7) or this clause (8) so long as such Lien does
not extend to any other Property (other than improvements and
accessions to the original
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Property) and the principal amount of Debt so secured is not increased
except as otherwise permitted under clause (8) of paragraph (b) of
Section 3.08 or clause (12) of Section 3.09;
(9) Liens to secure Debt consisting of Permitted Interest Rate and
Currency Protection Agreements permitted to be Incurred pursuant to
clause (10) of paragraph (b) of Section 3.08;
(10) Liens to secure Debt secured by Receivables permitted to be
Incurred pursuant to clause (11) of paragraph (b) of Section 3.08;
(11) Liens granted after the date of the Indenture to secure the
Notes;
(12) Permitted Liens; and
(13) Liens not otherwise permitted by the foregoing clauses (1)
through (12) that, at the time of Incurrence thereof, taken together
with all other Liens Incurred after the date of the Indenture in
reliance on this clause (13) and which remain in existence, secure Debt
in an aggregate principal amount not to exceed 5% of the Company's
Consolidated Tangible Assets as of the most recent balance sheet date
as of which the Company's consolidated balance sheet is available;
SECTION 3.14. Limitation on Sale and Leaseback Transactions. The
Company may not, and may not permit any Restricted Subsidiary to, directly or
indirectly, enter into, assume, Guarantee or otherwise become liable with
respect to any Sale and Leaseback Transaction, unless:
(1) The Company or such Restricted Subsidiary would be entitled to
Incur
o Debt in an amount equal to the Attributable Value of
the Sale and Leaseback Transaction pursuant to the
covenant described in Section 3.08 and
o a Lien pursuant to the covenant described in Section
3.13, equal in amount to the Attributable Value of
the Sale and Leaseback Transaction, without also
securing the Notes; and
(2) the Sale and Leaseback Transaction is treated as an Asset
Disposition and all of the conditions of the Indenture described in
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Section 3.15 (including the provisions concerning the application of
Net Available Proceeds) are satisfied with respect to such Sale and
Leaseback Transaction, treating all of the consideration received in
such Sale and Leaseback Transaction as Net Available Proceeds for
purposes of such covenant.
SECTION 3.15. Limitation on Asset Dispositions. The Company may not,
and may not permit any Restricted Subsidiary to, make any Asset Disposition
unless:
(1) The Company or the Restricted Subsidiary, as the case may be,
receives consideration for such disposition at least equal to the Fair
Market Value for the Property sold or disposed of; and
(2) at least 75% of the consideration for such disposition
consists of cash or Cash Equivalents or the assumption of Debt of the
Company or any Restricted Subsidiary (other than Debt that is
subordinated to the Notes or any Domestic Restricted Subsidiary
Guarantee) and release of the Company and all Restricted Subsidiaries
from all liability on the Debt assumed (or if less than 75%, the
remainder of such consideration consists of Telecommunications Assets).
The Net Available Proceeds or any portion thereof from Asset
Dispositions may be applied by the Company or a Restricted Subsidiary, to the
extent the Company or such Restricted Subsidiary elects or is required by the
terms of any Debt:
o to the permanent repayment or reduction of Debt then outstanding
under any Credit Facility, to the extent such Credit Facility
would require such application or prohibit payments pursuant to an
Offer to Purchase in accordance with this Section 3.15 (other than
Debt owed to the Company or any Affiliate of the Company); or
o to reinvest in Telecommunications Assets (including by means of an
Investment in Telecommunications Assets by a Restricted Subsidiary
with Net Available Proceeds received by the Company or another
Restricted Subsidiary).
Any Net Available Proceeds from an Asset Disposition not applied in
accordance with the preceding paragraph within 360 days from the date of the
receipt of such Net Available Proceeds shall constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $10 million, the Company will be
required to make an Offer to Purchase with such Excess Proceeds on a pro rata
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basis according to principal amount, or, in the case of Debt issued at a
discount, the then Accreted Value, for
(x) outstanding Notes at a price in cash equal to 100% of the
principal amount of the Notes on the purchase date plus accrued and
unpaid interest, if any, on the notes, subject to the right of Holders
of record on the relevant record date to receive interest due on the
relevant interest payment date, and
(y) any other Debt of the Company or any Guarantor that ranks
equally with the Notes, or any Debt of a Restricted Subsidiary that is
not a Guarantor, at a price no greater than 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the
purchase date (or 100% of the then Accreted Value plus accrued and
unpaid interest, if any, to the purchase date in the case of original
issue discount Debt, to the extent, in the case of this clause (y),
required under the terms of such Debt other than Debt owed to the
Company or any Affiliate of the Company).
To the extent there are any remaining Excess Proceeds following the
completion of the Offer to Purchase, the Company shall apply such Excess
Proceeds to the repayment of other Debt of the Company or any Restricted
Subsidiary, to the extent permitted or required under the terms of such other
Debt. Any other remaining Excess Proceeds may be applied to any use as
determined by the Company which is not otherwise prohibited by the Indenture,
and the amount of Excess Proceeds shall be reset to zero.
SECTION 3.16. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries. The Company may not, and may not permit any Restricted
Subsidiary to, issue, transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of a Restricted Subsidiary or securities convertible or
exchangeable into, or options, warrants, rights or any other interest with
respect to, Capital Stock of a Restricted Subsidiary to any Person other than
the Company or a Restricted Subsidiary except:
(1) a sale of all of the Capital Stock of such Restricted
Subsidiary owned by the Company and any Restricted Subsidiary that
complies with the provisions described in the section above entitled
Section 3.15 to the extent such provisions apply,
(2) in a transaction that results in such Restricted Subsidiary
becoming a Joint Venture; provided
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o such transaction complies with the provisions
described in Section 3.15 to the extent such
provisions apply and
o the remaining interest of the Company or any other
Restricted Subsidiary in such Joint Venture would
have been permitted as a new Restricted Payment or
Permitted Investment under the provisions of Section
3.11;
(3) the issuance, transfer, conveyance, sale or other disposition
of shares of such Restricted Subsidiary so long as after giving effect
to such transaction such Restricted Subsidiary remains a Restricted
Subsidiary and such transaction complies with the provisions described
in Section 3.15 to the extent such provisions apply;
(4) the transfer, conveyance, sale or other disposition of shares
required by applicable law or regulation;
(5) if required, the issuance, transfer, conveyance, sale or other
disposition of directors' qualifying shares;
(6) Disqualified Stock issued in exchange for, or upon conversion
of, or the proceeds of the issuance of which are used to redeem,
replace, refund or refinance, shares of Disqualified Stock of such
Restricted Subsidiary, provided that the amounts of the redemption
obligations of such Disqualified Stock shall not exceed the amounts of
the redemption obligations of, and such Disqualified Stock shall have
redemption obligations no earlier than those required by, the
Disqualified Stock being exchanged, converted, redeemed, replaced,
refunded or refinanced,
(7) in a transaction where the Company or a Restricted Subsidiary
acquires at the same time not less than its Proportionate Interest in
such issuance of Capital Stock,
(8) Capital Stock issued and outstanding on the date of the
Indenture;
(9) Capital Stock of a Restricted Subsidiary issued and
outstanding prior to the time that such Person becomes a Restricted
Subsidiary so long as such Capital Stock was not issued in
contemplation of such Person's becoming a Restricted Subsidiary or
otherwise being acquired by the Company; and
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(10) an issuance of Preferred Stock of a Restricted Subsidiary
(other than Preferred Stock convertible or exchangeable into Common
Stock of any Restricted Subsidiary) otherwise permitted by the
Indenture.
SECTION 3.17. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, sell, lease, transfer, or otherwise dispose of any of its Property
to, or purchase any Property from, or enter into any contract, agreement,
understanding, loan, advance, Guarantee or transaction, including the rendering
of services, with or for the benefit of, any Affiliate (each of the foregoing,
an "AFFILIATE TRANSACTION"), unless:
(a) such Affiliate Transaction or series of Affiliate Transactions
is in the best interest of the Company or such Restricted Subsidiary
and on terms that are fair and reasonable to, and in the best interests
of, the Company or the Restricted Subsidiary, as the case may be; and
(b) The Company delivers to the Trustee
o with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
payments in excess of $10 million but less than $15
million, a certificate of the chief executive, operating
or financial officer of the Company evidencing such
officer's determination that such Affiliate Transaction or
series of Affiliate Transactions complies with clause (a)
above and
o with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
payments equal to or in excess of $15 million, a board
resolution certifying that such Affiliate Transaction or
series of Affiliate Transactions complies with clause (a)
above and that such Affiliate Transaction or series of
Affiliate Transactions has been approved by the Board of
Directors of the Company, including a majority of the
disinterested members of the Board of Directors of the
Company, provided that, if there shall not be at least two
disinterested members of the Board of Directors of the
Company with respect to the Affiliate Transaction, the
Company shall, in addition to such board resolution, file
with the Trustee a written opinion from an investment
banking firm of national standing in the United States
which, in the good faith judgment of the Board of
Directors of the Company, is independent with respect to
the Company and its Affiliates and
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qualified to perform such task, which opinion shall be to
the effect that the consideration to be paid or received
in connection with such Affiliate Transaction is fair,
from a financial point of view, to the Company or such
Restricted Subsidiary.
Despite (a) and (b) above, the following shall not be deemed Affiliate
Transactions:
(1) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and
consistent with industry practice;
(2) any agreement or arrangement with respect to the compensation
of a director or officer of the Company or any Restricted Subsidiary
approved by a majority of the Board of Directors of the Company and
consistent with industry practice;
(3) transactions between or among the Company and its Restricted
Subsidiaries; provided that no more than 10% of the Voting Stock, on a
fully diluted basis, of any such Restricted Subsidiary is owned by an
Affiliate of the Company (other than a Restricted Subsidiary);
(4) Restricted Payments and Permitted Investments permitted by the
covenant described in Section 3.11 (other than Investments in
Affiliates that are not the Company or Restricted Subsidiaries);
(5) transactions pursuant to the terms of or performance of any
agreement or arrangement as in effect on the date of the Indenture;
(6) transactions pursuant to and any payments under, compliance
with, or performance of obligations under, the Xxxxxxxx Intercompany
Arrangements;
(7) transactions with respect to wireline or wireless transmission
capacity, the lease or sharing or other use of cable or fiber optic
lines, equipment, rights-of-way or other access rights, between the
Company, or any Restricted Subsidiary, and any other Person; provided
that, in the case of this clause (7), such transaction complies with
clause (a) in the immediately preceding paragraph;
(8) loans, advances or extensions of credit to employees, officers
and directors of the Company or any Restricted Subsidiary made in the
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ordinary course of business and consistent with past practice or in
connection with employee benefits agreements or arrangements approved
by the Board of Directors of the Company; provided, however, that if
the Company or any Restricted Subsidiary makes loans, advances or
extensions of credit to employees, officers and directors in excess or
$3 million in the aggregate at any one time outstanding, the Board of
Directors of the Company must determine that such loans, advances or
extensions of credit in excess of $3 million are fair and reasonable
to, and in the best interests of, the Company or the Restricted
Subsidiary, as the case may be.
(9) the granting or performance of registration rights under any
written registration rights agreement approved by the Board of
Directors of the Company;
(10) transactions with Persons solely in their capacity as holders
of Debt or Capital Stock of the Company or any of its Subsidiaries,
where such Persons are treated no more favorably than holders of Debt
or Capital Stock of the Company generally;
(11) sales or issuances of Capital Stock, other than Disqualified
Stock, in exchange for cash, securities or Property; provided that such
transactions comply with clause (a) in the immediately preceding
paragraph; and
(12) any agreement to do any of the foregoing.
SECTION 3.18. Repurchase of Notes Upon Change of Control Triggering
Event. Within 30 days of both a Change of Control and a Rating Decline with
respect to the Notes (a "CHANGE OF CONTROL TRIGGERING EVENT"), the Company will
be required to make an Offer to Purchase all outstanding Notes in accordance
with this Section 3.18 at a price in cash equal to 101% of the principal amount
of the Notes on the purchase date plus any accrued and unpaid interest, if any,
to such purchase date, subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date.
A "CHANGE OF CONTROL" means the occurrence of any of the following
events:
(A) if any "person" or "group" (as such terms are used in Section
13(d) and Section 14(d) of the Exchange Act or any successor provisions
to either of the foregoing), including any group acting for the purpose
of acquiring, holding, voting or disposing of securities within the
meaning of Rule l3d-5 (b) (1) under the Exchange Act, other than any
one
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or more of the Permitted Holders, becomes the "BENEFICIAL OWNER"
(as defined in Rule l3d-3 under the Exchange Act, except that a person
will be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly,
of 35% or more of the total voting power of the Voting Stock of the
Company at a time when the Permitted Holders are the "beneficial
owners" (as defined in Rule l3d-3 under the Exchange Act, except that a
person will be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, in the aggregate of a lesser percentage of the total voting
power of the Voting Stock of the Company than such other person or
group (for purposes of this clause (A), such person or group shall be
deemed to beneficially own any Voting Stock of a corporation held by
any other corporation so long as such person or group beneficially
owns, directly or indirectly, in the aggregate a majority of the total
voting power of the Voting Stock of such other corporation); or
(B) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the
assets of the Company and the Restricted Subsidiaries, considered as a
whole (other than a disposition of such assets as an entirety or
virtually as an entirety to one or more Permitted Holders) shall have
occurred; or
(C) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election or appointment
by such board or whose nomination for election by the shareholders of
the Company was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or
(D) the shareholders of the Company shall have approved any plan
of liquidation or dissolution of the Company.
If the Company makes an Offer to Purchase the notes in accordance with
the this Section 3.18, the Company intends to comply with any applicable
securities laws and regulations, including any applicable requirements of
Section 14(e) of, and Rule l4e-1 under, the Exchange Act. To the extent that the
provisions of any applicable securities laws or regulations conflict with the
provisions relating to the Offer to Purchase, the Company will comply with the
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applicable securities laws and regulations and will not be deemed to have
breached its obligations described above by virtue thereof.
The existence of the Holders' right to require, subject to certain
conditions, the Company to repurchase Notes upon a Change of Control Triggering
Event may deter a third party from acquiring the Company in a transaction that
constitutes a Change of Control. If an Offer to Purchase the notes in accordance
with this Section 3.18 is made, there can be no assurance that the Company will
have sufficient funds to pay the purchase price for Notes tendered by Holders
seeking to accept the Offer to Purchase. In addition, instruments governing
other Debt of the Company may prohibit the Company from purchasing any Notes
prior to their Stated Maturity, including pursuant to an Offer to Purchase, or
require that such Debt be repurchased upon a Change of Control.
If an Offer to Purchase the notes in accordance with this Section 3.18
occurs at a time when the Company does not have sufficient available funds to
pay the purchase price for all Notes tendered pursuant to such Offer to Purchase
or a time when the Company is prohibited from purchasing the Notes, and the
Company is unable either to obtain the consent of the holders of the relevant
Debt or to repay such Debt, an Event of Default would occur under the Indenture.
In addition, one of the events that constitutes a Change of Control under the
Indenture is a sale, transfer, assignment, lease, conveyance or other
disposition of all or substantially all of the assets of the Company. The
Indenture will be governed by New York law, and there is no established
definition under New York law of "substantially all" of the assets of a
corporation. Accordingly, if the Company were to engage in a transaction in
which it disposed of less than all of its assets, a question of interpretation
could arise as to whether such disposition was of "substantially all" of its
assets and whether the Company was required to make an Offer to Purchase the
notes in accordance with this Section 3.18.
Except as described herein with respect to a Change of Control, the
Indenture does not contain any other provisions that permit Holders of Notes to
require that the Company repurchase or redeem Notes in the event of a takeover,
recapitalization or similar restructuring.
SECTION 3.19. Reports. Whether or not the Company is subject to Section
13(a) or 15(d) of the Exchange Act, or any successor provision thereto, the
Company shall file with the Commission, unless the Commission will not accept
such filing, the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the Company
were subject to such successor provision, such documents to be filed with the
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Commission on or prior to the respective dates by which the Company would have
been required to file them.
The Company shall also in any event:
(a) within 15 days of each required filing date;
o transmit by mail to all Holders, as their names and
addresses appear in the security register, without cost
to such Holders; and
o file with the Trustee copies of the annual reports,
quarterly reports and other documents, without exhibits,
which the Company would have been required to file with
the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act or any successor provisions thereto if the
Company were subject to such successor provisions and
(b) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request, supply copies
of such documents, without exhibits, to any prospective Holder.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.20. Limitation on Designations of Unrestricted Subsidiaries.
The Indenture will provide that the Company will not designate any Subsidiary of
the Company, other than a newly created Subsidiary in which no Investment has
previously been made, as an "Unrestricted Subsidiary" under the Indenture (a
"DESIGNATION") unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(b) immediately after giving effect to such Designation, the
Company would be able to Incur $1.00 of Debt under paragraph (a) of
Section 3.08; and
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(c) The Company would not be prohibited under the Indenture from
making an Investment at the time of Designation (assuming the
effectiveness of such Designation) in an amount (the "DESIGNATION
AMOUNT") equal to the portion (proportionate to the Company's equity
interest in such Restricted Subsidiary) of the Fair Market Value of the
net assets of such Restricted Subsidiary on such date.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
3.11 for all purposes of the Indenture in the Designation Amount; provided,
however, that, upon a Revocation of any such Designation of a Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary of an amount (if positive) equal to (1) the Company's
"Investment" in such Subsidiary at the time of such Revocation less (2) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
Revocation less (3) any Returned Investment. At the time of any Designation of
any Subsidiary as an Unrestricted Subsidiary, such Subsidiary shall not own any
Capital Stock of the Company or any Restricted Subsidiary.
The Indenture will further provide that neither the Company nor any
Restricted Subsidiary shall at any time (x) provide credit support for, or a
Guarantee of, any Debt of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Debt); provided that the
Company or a Restricted Subsidiary may pledge Capital Stock or Debt of any
Unrestricted Subsidiary on a nonrecourse basis such that the pledgee has no
claim whatsoever against the Company other than to obtain such pledged Capital
Stock or Debt, (y) be directly or indirectly liable for any Debt of any
Unrestricted Subsidiary or (z) be directly or indirectly liable for any Debt
which provides that the holder of such Debt may (upon notice, lapse of time or
both) declare a default thereon or cause the payment thereof to be accelerated
or payable prior to its final scheduled maturity upon the occurrence of a
default with respect to any Debt, Lien or other obligation of any Unrestricted
Subsidiary (including any right to take enforcement action against such
Unrestricted Subsidiary), except in the case of clause (x) or (y) to the extent
permitted under Section 3.11 and Section 3.17.
Unless Designated as an Unrestricted Subsidiary, any Person that
becomes a Subsidiary of the Company will be classified as a Restricted
Subsidiary; provided, however, that such Subsidiary shall not be designated as a
Restricted Subsidiary and shall be automatically classified as an Unrestricted
Subsidiary if either of the requirements set forth in clauses (a) and (b) of the
immediately following paragraph will not be satisfied immediately following such
classification. Except as
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provided in the first sentence of this Section, no Restricted Subsidiary may be
redesignated as an Unrestricted Subsidiary.
The Indenture will further provide that a Designation may be revoked (a
"REVOCATION") by a resolution of the Board of Directors of the Company; provided
that the Company will not make any Revocation unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
and
(b) all Liens and Debt of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if Incurred at such time,
have been permitted to be Incurred at such time for all purposes of the
Indenture.
All Designations and Revocations must be evidenced by resolutions of
the Board of Directors of the Company delivered to the Trustee
o certifying compliance with the foregoing provisions and
o giving the effective date of such Designation or Revocation, such
delivery to the Trustee to occur within 45 days after the end of
the fiscal quarter of the Company in which such Designation or
Revocation is made (or, in the case of a Designation or Revocation
made during the last fiscal quarter of the Company's fiscal year,
within 90 days after the end of such fiscal year).
SECTION 3.21. Existence. Subject to Articles Three and Eight of this
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Restricted Subsidiary and
the rights (whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the Company and each
such Restricted Subsidiary, provided that the Company shall not be required to
preserve any such right, license or franchise, or the existence of any
Restricted Subsidiary, if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole.
SECTION 3.22. Payment of Taxes and Other Claims. The Company will pay
or discharge and shall cause each of its Restricted Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (a) all material taxes, assessments and governmental charges levied
or
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imposed upon (i) the Company or any such Restricted Subsidiary, (ii) the income
or profits of any such Restricted Subsidiary which is a corporation or (iii) the
property of the Company or any such Restricted Subsidiary and (b) all material
lawful claims for labor materials and supplies that, if unpaid, might by law
become a lien upon the property of the Company or any such Restricted
Subsidiary; provided that the Company shall not be required to pay of discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established.
SECTION 3.23. Maintenance of Properties and Insurance. The Company will
cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries, 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
that nothing in this Section shall prevent the Company or any such Restricted
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Restricted Subsidiary, as the case may be,
is then conducting business.
SECTION 3.24. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not (1) at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company will expressly waive all benefit
or advantage of any such law and (2) hinder, delay or impede the execution of
any power granted
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to the Trustee under this Indenture and will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Events of Default. Each of the following constitutes an
"EVENT OF DEFAULT":
(a) default in the payment of principal of, or premium, if any, on,
any Note when the same becomes due and payable, upon acceleration,
redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;
(c) default in the payment of principal of and interest on Notes
required to be purchased pursuant to an Offer to Purchase under Section
3.18;
(d) failure to comply with the requirements of Article Eight;
(e) the Company or any Guarantor defaults in the performance of or
breaches any other covenant or agreement in the Indenture or under the
Notes (other than (a), (b) or (c) above) and such default or breach
continues for a period of 60 consecutive days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount
of the Notes;
(f) there occurs a default under the terms of any instrument
evidencing or securing Debt of the Company or any Restricted Subsidiary
having an outstanding principal amount of $25 million or its foreign
currency equivalent at the time individually or in the aggregate which
default results in the acceleration of the payment of such indebtedness
or constitutes the failure to pay such indebtedness when due (after
expiration of any applicable grace period);
(g) the rendering of a final judgment or judgments, not subject to
appeal or covered by insurance, against the Company or any Restricted
Subsidiary in an aggregate amount in excess of $25 million or its
foreign
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currency equivalent at the time and which shall not be waived,
satisfied or discharged for any period of 45 consecutive days after the
date on which the right to appeal has expired;
(h) any Domestic Restricted Subsidiary Guarantee ceases to be in full
force and effect, other than in accordance with the terms of such
Domestic Restricted Subsidiary Guarantee, or any Guarantor denies or
disaffirms its obligations under its Domestic Restricted Subsidiary
Guarantee;
(i) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any of its Restricted
Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any of its
Restricted Subsidiaries or for all or substantially all of the property
and assets of the Company or any of its Restricted Subsidiaries or (C)
the winding up or liquidation of the affairs of the Company or any of
its Restricted Subsidiaries and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(j) the Company or any of its Restricted Subsidiaries (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Restricted Subsidiaries or for
all or substantially all of the property and assets of the Company or
any of its Restricted Subsidiaries or (C) effects any general
assignment for the benefit of creditors.
SECTION 4.02. Acceleration. If any Event of Default (other than an
Event of Default described in clause (i) or (j) of Section 4.01) shall occur and
be continuing under the Indenture, either the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding, by written
notice to the Company (and to the Trustee if such notice is given by the Holders
(the "ACCELERATION NOTICE")), may, and the Trustee at the request of such
Holders shall, declare the principal of, premium, if any, and accrued interest
on the Notes to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued interest shall be
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (e) of Section 4.01 has occurred
and is continuing, such
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declaration of acceleration shall be automatically rescinded and annulled if the
event of default triggering such Event of Default pursuant to clause (e) of
Section 4.01 shall be remedied or cured by the Company or the relevant Domestic
Restricted Subsidiary or waived by the holders of the relevant Debt within 60
days after the declaration of acceleration with respect thereto. If an Event of
Default specified in clause (i) or (j) of Section 4.01 occurs with respect to
the Company, the principal of, premium, if any, and accrued interest on the
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
SECTION 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 4.04. Waiver of Past Defaults. The Holders of at least a
majority in principal amount of the outstanding Notes by written notice to the
Company and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (1) all existing Events of
Default (other than (x) the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by such declaration of
acceleration or (y) with respect to a covenant or provision of this Indenture
which under Section 7.02 cannot be modified or amended without the consent of
the Holders of each outstanding Note affected thereby) have been cured or waived
and (2) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction. 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 impair any right consequent thereon.
SECTION 4.05. Control by Majority. The Holders of at least a majority
in aggregate principal amount of the outstanding Notes may 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. However, the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in
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good faith may be unduly prejudicial to the rights of Holders of Notes not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from Holders of
Notes.
SECTION 4.06. Limitation on Suits. A Holder may not pursue any remedy
with respect to the Indenture or the Notes unless:
(i) the Holder gives the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of at least a majority
in aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
SECTION 4.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 4.08. Collection Suit by Trustee. If an Event of Default
specified in Section 4.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover amounts due the Trustee under
Section 5.07 hereof, including the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 4.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
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necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to 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 5.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 5.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 4.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 5.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section upon five Business Days prior notice to the
Company.
SECTION 4.11. Undertaking for Costs. 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 a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 4.06 hereof, or a
suit by Holders of more than 10% in aggregate principal amount of the then
outstanding Notes.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of a Default and
after the curing or waiving of any Default which may have occurred, undertakes
to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been
cured or waived) 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 their
exercise, as a prudent person would exercise under the circumstances in the
conduct of such person's own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which the
Trustee has actual notice and after the curing or waiving of all such Events of
Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate
the accuracy of the facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a majority in principal amount of the Notes at the
time outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
This Section is in furtherance of and subject to Section 315 and
Section 316 of the Trust Indenture Act of 1939.
SECTION 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
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evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(e) prior to the occurrence of a Default hereunder, of which the
Trustee has actual notice, and after the curing or waiving of all Defaults, 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, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so to
do by the Holders of not less than a majority in aggregate principal amount of
the Notes then outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the reasonable opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require indemnity satisfactory to
it against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company or,
if paid by the Trustee or any predecessor trustee, shall be repaid promptly by
the Company upon demand;
(f) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture;
(g) 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
(h) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its rights to be indemnified, are
extended
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to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Notes or Application of Proceeds Thereof. The recitals contained herein and in
the Notes, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Notes. The Trustee shall not
be accountable for the use or application by the Company of any of the Notes or
of the proceeds thereof.
SECTION 5.04. Trustee and Agents May Hold Notes; Collections, etc. The
Trustee or any agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Notes with the same rights it
would have if it were not the Trustee or such agent and may otherwise deal with
the Company and receive, collect, hold and retain collections from the Company
with the same rights it would have if it were not the Trustee or such agent.
However, subject to Section 5.13 hereof, the Trustee will comply with Section
310(b) and Section 311 of the Trust Indenture Act of 1939.
SECTION 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.06 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.06. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is actually
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in Trust Indenture Act of 1939
Section 313(c) notice of the Default or Event of Default within 90 days after it
occurs, unless such Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Note, 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 determine that the withholding of such notice is in the
interest of the Holders.
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SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company agrees to indemnify each
of the Trustee or any predecessor Trustee and their employees, directors and
officers for, and to hold them harmless against, any and all loss, damage,
claims, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent that such loss, damage, claim, liability
or expense is due to its own negligence or bad faith. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior lien to that of the
Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular Notes,
and the Notes are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 4.01(i) or Section 4.01(j), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Section 5.01 and Section 5.02, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an
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Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.09. Persons Eligible for Appointment as Trustee. The Trustee
hereunder shall at all times be a corporation having a combined capital and
surplus of at least $50,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State 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.
SECTION 5.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor trustee,
or any Noteholder who has been a bona fide Holder of a Note or Notes for at
least six months may, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written
request therefor by the Company or by any Noteholder who has been a
bona fide Holder of a Note or Notes for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.09 and shall fail to resign after written
request therefor by the Company or by any such Noteholder; or
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(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator 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, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to Section 315(e) of the Trust Indenture Act of 1939, any Noteholder who
has been a bona fide Holder of a Note or Notes for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and appoint a
successor trustee by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Company the evidence provided for in Section
6.01 of the action in that regard taken by the Noteholders.
If no successor trustee shall have been so appointed and have accepted
appointment 30 days after the mailing of such notice of removal, the Trustee
being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 5.11.
SECTION 5.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee herein; but, nevertheless, on the written request
of the Company or of
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the successor trustee, upon payment of its charges then unpaid, the Trustee
ceasing to act shall, subject to Section 10.06, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 5.07.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall mail notice thereof by first-class mail to the
Holders of Notes at their last addresses as they shall appear in the Note
Register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.10. If the Company fails to
mail such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or to which the Trustee's assets
may be sold, or any corporation resulting from any merger, conversion,
consolidation or sale to which the Trustee shall be a party or by which the
Trustee's property may be bound, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.09, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee and deliver such Notes so
authenticated; and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee
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or to authenticate Notes in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 5.13. Preferential Collection of Claims. Reference is made to
Section 311 of the Trust Indenture Act of 1939. For purposes of Section 311(b)
(4) and (6) of such Act, the following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 5.01 and Section 5.02)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Notes; Record Date. Subject to Section 5.01 and Section 5.02, the execution of
any instrument by a Noteholder or his agent or proxy may be proved in accordance
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with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of Notes
shall be proved by the Note register or by a certificate of the Registrar
thereof. The Company may set a record date for purposes of determining the
identity of Holders of Notes entitled to vote or consent to any action referred
to in Section 6.01, which record date may be set at any time or from time to
time by notice to the Trustee, for any date or dates (in the case of any
adjournment or resolicitation) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only Holders of Notes of record on
such record date shall be entitled to so vote or give such consent or to
withdraw such vote or consent.
SECTION 6.03. Notes Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Notes have concurred in any direction, consent or waiver under this Indenture,
Notes which are owned by the Company or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Notes which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
may be regarded as outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company or any other obligor upon the Notes or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Notes, if any, known by the
Company to be owned or held by or for the account of any of the above-described
persons; and, subject to Section 5.01 and Section 5.02, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are
outstanding for the purpose of any such determination.
SECTION 6.04. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action,
any Holder of a Note the serial number of which is shown by the evidence to be
included among the serial numbers of the Notes the Holders of which have
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consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Note. Except as aforesaid any such action taken by the
Holder of any Note shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Note. Any action taken by the Holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Notes.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders. The
Company, the Guarantors, if any, and the Trustee may, at any time and from time
to time, enter into one or more indentures supplemental to the Indenture without
notice to, or the consent of, any Holder:
(i) to evidence the succession of another Person to the Company
and the assumption by such successor of the covenants of the Company in
the Indenture and the Notes;
(ii) to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power conferred upon the
Company by the Indenture;
(iii) to add any additional Events of Default;
(iv) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(v) to evidence and provide for the acceptance of appointment
under the Indenture of a successor trustee;
(vi) to secure the Notes;
(vii) to comply with the Trust Indenture Act of 1939;
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(viii) to add additional Guarantees with respect to the Notes or
to release Guarantors from Domestic Restricted Subsidiary Guarantees as
provided by the terms of the Indenture; or
(ix) to cure any ambiguity in the Indenture, to correct or
supplement any provision in the Indenture which may be inconsistent
with any other provision therein or to add any other provision with
respect to matters or questions arising under the Indenture;
provided such actions shall not adversely affect the interests of the Holders in
any material respect.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 7.04 hereof, the Trustee
shall join with the Company and the Guarantors, if any, in the execution of any
supple mental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 7.02. Supplemental Indentures With Consent of Holders. Except
as provided in the next succeeding paragraphs, this Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for such
Notes), and any existing default or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for such
Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.04 hereof, the Trustee shall join with the Company and
the Guarantors (if any), in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Subject to Section 4.04 and Section 4.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding may waive compliance in
a particular instance by the Company with any provision of this Indenture or the
Notes. With the consent of the Holders of not less than a majority in principal
amount of the outstanding Notes, the Company and the Trustee may enter into one
or more indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the Holders; provided
that no such supplemental indenture shall, without the consent of the Holder of
each outstanding Note:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the interest thereon that would be due and payable upon the
Stated Maturity thereof, or change the place of payment where, or the
coin or currency in which, any Note or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof;
(ii) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is necessary for any such
supplemental indenture or required for any waiver of compliance with
certain provisions of the Indenture or certain Defaults thereunder;
(iii) subordinate in right of payment, or otherwise subordinate,
the Notes to any other Debt;
(iv) except as otherwise required by the Indenture, release any
security interest that may have been granted in favor of the Holders of
the Notes;
(v) reduce the premium payable upon the redemption of any Note
nor change the time at which any Note may be redeemed, as described in
the Indenture;
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(vi) reduce the premium payable upon a Change of Control
Triggering Event;
(vii) make any change in any Domestic Restricted Subsidiary
Guarantee that would adversely affect the Holders of the Notes; or
(viii) modify any provision of this paragraph (except to increase
any percentage set forth herein).
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise to any Holder of any Notes for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 7.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Notes shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 7.04. Documents to Be Given to Trustee; Compliance with TIA.
The Trustee, subject to the provisions of Section 5.01 and Section 5.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture. Every such supplemental indenture shall comply
with the TIA.
SECTION 7.05. Notation on Notes in Respect of Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation
approved by the Trustee as to form (but not as to substance) as to any matter
provided for by such supplemental indenture or as to any action taken at any
such meeting. If the Company or the Trustee shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may
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be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Notes then outstanding.
ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. Consolidation, Merger or Sale of Assets. The Company
may not, in a single transaction or a series of related transactions,
(1) consolidate with or merge into any other Person or Persons or
permit any other Person to consolidate with or merge into the Company
or
(2) directly or indirectly, transfer, sell, lease, convey or
otherwise dispose of all or substantially all its assets to any other
Person or Persons unless:
(a) in a transaction in which the Company is not the
resulting, surviving or transferee Person or in which the
Company transfers, sells, leases, conveys or otherwise
disposes of all or substantially all of its assets to any
other Person, the resulting, surviving or transferee Person
(the "SUCCESSOR ENTITY") is organized under the laws of the
United States of America or any State thereof or the District
of Columbia and shall expressly assume, by a supplemental
indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations
under the Indenture;
(b) immediately before and after giving effect to such
transaction and treating any Debt which becomes an obligation
of the Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such
Restricted Subsidiary at the time of the transaction, no
Default or Event of Default shall have occurred and be
continuing;
(c) immediately after giving effect to such transaction
and treating any Debt which becomes an obligation of the
Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company (or the
successor entity to the Company) or such Restricted Subsidiary
at the time of the transaction, the Company (or the successor
entity to the Company)
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could Incur at least $1.00 of additional Debt pursuant to
paragraph (a) of Section 3.08;
(d) if, as a result of any such transaction, Property of
the Company or any Restricted Subsidiary would become subject
to a Lien prohibited by the Company in Section 3.13, the
Company or the successor entity to the Company shall have
secured the Notes as required by said covenant; and
(e) in the case of a transfer, sale, lease, conveyance or
other disposition of all or substantially all of the assets of
the Company, such assets shall have been transferred as an
entirety or virtually as an entirety to one Person and such
Person shall have complied with all the provisions of this
Section.
SECTION 8.02. Successor Corporation Substituted. (a) Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 8.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer, except in the case of a lease, instead to the successor corporation), and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.
(b) Notwithstanding the foregoing, (1) a consolidation or merger by
the Company with or into, or (2) the sale, assignment, transfer, lease,
conveyance or other disposition by the Company of all or substantially all of
its property or assets to, one or more of its Subsidiaries shall not relieve the
Company from its obligations under this Indenture and the Notes.
(c) Notwithstanding the foregoing, but subject to Section 8.01(2(a))
and (b), the Company may merge or consolidate with or into any Restricted
Subsidiary.
SECTION 8.03. Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Section 5.01 and Section 5.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, conveyance,
sale, transfer, lease, exchange or other disposition complies with the
applicable provisions of this Indenture.
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ARTICLE 9
REDEMPTION OF NOTES
SECTION 9.01. Right of Optional Redemption; Prices. Prior to ____,
200_, the Company may redeem all or part of the Notes at any time upon not less
than 30 nor more than 60 days' notice at the Make-Whole Price, plus accrued and
unpaid interest on the Notes, if any, to the redemption date. On or after
[ ], 200_, the Company at its option may, at any time, redeem all,
or from time to time any part of, the Notes upon payment of the optional
redemption prices set forth in the form of Note hereinabove recited, together
with accrued and unpaid interest to the date fixed for redemption.
In addition, at any time or from time to time prior to ______, 2002,
the Company may redeem up to 35% of the original aggregate principal amount of
the Notes at a redemption price equal to ___% of the principal amount of the
Notes so redeemed, plus accrued and unpaid interest thereon (if any) to the
redemption date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment
Date), with the net cash proceeds of one or more private placements to Persons
other than Affiliates of the Company or public offerings of common stock of the
Company, in each case resulting in gross proceeds to the Company of at least
$100 million in the aggregate; provided that (1) at least 65% of the original
aggregate principal amount of the Notes would remain outstanding immediately
after giving effect to such redemption; (2) any such redemption shall be made
within 90 days of such private placement or public offering upon not less than
30 nor more than 60 days' prior notice; and (3) any such redemption may not
occur in connection with or after the occurrence of a Change of Control.
SECTION 9.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Notes to be redeemed as a whole or in part shall be
given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Notes at their last addresses as they shall appear
upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
The notice of redemption to each such Holder shall identify the Notes
to be redeemed (including the CUSIP number) and shall specify the principal
amount of each Note held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon
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presentation and surrender of such Notes, that interest accrued to the date
fixed for redemption will be paid as specified in said notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Note is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Notes to be redeemed at the option 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.
No later than 10:00 a.m. on the redemption date specified in the notice
of redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting as
its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money sufficient to redeem on the redemption date all
the Notes so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. The Company will deliver
to the Trustee at least 70 days prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Notes to be
redeemed.
If less than all the Notes are to be redeemed, the Trustee shall
select, either pro rata, by lot or by any other method it shall in its sole
discretion deem fair and appropriate, Notes to be redeemed in whole or in part;
provided that no Note of $1,000 in principal amount or less shall be redeemed in
part. The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Notes shall relate, in the case of any Note redeemed or to
be redeemed only in part, to the portion of the principal amount of such Note
which has been or is to be redeemed.
SECTION 9.03. Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portions of Notes
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Notes at the redemption
price, together with interest accrued to said date) interest on the Notes or
portions of Notes so called for redemption shall cease to accrue and, except as
provided in Section 5.05 and Section 11.06, such Notes shall cease from and
after the date
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fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof and unpaid interest to
the date fixed for redemption. On presentation and surrender of such Notes at a
place of payment specified in said notice, said Notes or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on or prior to
the date fixed for redemption shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Date subject to the terms and
provisions of Section 2.04 hereof.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate borne by the Note.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to or
on the order of the Holder thereof, at the expense of the Company, a new Note or
Notes, of authorized denominations, in principal amount equal to the unredeemed
portion of the Note so presented.
SECTION 9.04. Exclusion of Certain Notes from Eligibility for Selection
for Redemption. Notes shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 10.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by a Board Resolution, at any time,
elect to have either Section 10.02 or Section 10.03 applied to the outstanding
Notes upon compliance with the conditions set forth below in this Article Ten.
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SECTION 10.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 10.01 hereof of the option applicable to this Section,
the Company shall be deemed to have been discharged from any and all Obligations
with respect to all outstanding Notes (and any Guarantor will be discharged from
any and all Obligations in respect of its Subsidiary Guarantee) on the date
which is the 123rd day after the deposit referred to in Section 10.04(a);
provided that all of the conditions set forth below are satisfied (hereinafter,
"LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Debt represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 10.05 hereof and the other Sections of this
Indenture referred to in clauses (1) and (2) of this Section, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (1) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 10.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (2) the Company's obligations with respect to such Notes
under Sections 2.01, 2.02, 2.05, 2.06, 2.07, 2.08, 2.10, 3.01, 3.02, 3.04 and
10.05 hereof, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 5.07 hereof, and (4) the Company's obligations in connection therewith
and with this Article Ten. Subject to compliance with this Article Ten, the
Company may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 10.03 hereof with respect to the Notes.
SECTION 10.03. Covenant Defeasance. Upon the Company's exercise under
Section 10.01 hereof of the option applicable to this Section, the Company shall
be released from its obligations under the covenants contained in Section 3.08
through Section 3.18 and clauses (3), (4) and (5) of Section 8.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall
thereafter be deemed not outstanding for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed outstanding
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Notes, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such
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omission to comply shall not constitute a Default or an Event of Default under
Section 4.01(c) or 4.01(d) hereof, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby.
SECTION 10.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to application of either Section 10.02 or
Section 10.03 hereof to the outstanding Notes:
(a) the Company has deposited with the Trustee, in trust, money and/or
U.S. Government Obligations that through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount 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 the principal of, premium, if any, and accrued interest on the
Notes on the Stated Maturity of such payments in accordance with the terms of
the Indenture and the Notes;
(b) in the case of an election under Section 10.02 hereof, the Company
has delivered to the Trustee (1) either (x) an Opinion of Counsel to the effect
that Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under this Article
Ten and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, which Opinion of Counsel must be
based upon (and accompanied by a copy of) a ruling of the Internal Revenue
Service to the same effect unless there has been a change in applicable Federal
income tax law after the date of this Indenture such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and
(2) an Opinion of Counsel to the effect that the creation of the defeasance
trust does not violate the Investment Company Act of 1940 and after the passage
of 123 days following the deposit, the trust fund will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law;
(c) in the case of an election under Section 10.03 hereof, the
delivery by the Company to the Trustee of (1) an Opinion of Counsel to the
effect that, among other things, the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred and (2) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the Investment Company Act of
1940 and after the passage of 123 days following the deposit, the trust fund
will not be subject to the effect of
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Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law;
(d) immediately after giving effect to such deposit on a pro forma
basis, no Event of Default, or event that after the giving of notice or lapse of
time or both would become an Event of Default, shall have occurred and be
continuing on the date of such deposit or during the period ending on the 123rd
day after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which the Company is bound,
(e) if at such time the Notes are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge,
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 10.02 or 10.03 hereof was not made by the Company with
the intent of preferring the Holders of the Notes over the other creditors of
the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others, and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
10.02 or the Covenant Defeasance under Section 10.03 (as the case may be) have
been complied with as contemplated by this Section.
SECTION 10.05. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 10.06 hereof, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 10.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any paying agent (including the Company acting as paying agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal of, 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 money or U.S. Government
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Obligations deposited pursuant to Section 10.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Ten to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or U.S. Government Obligations held by it as provided in
Section 10.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
10.04(a) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 10.06. Repayment to Company. Any money deposited with the
Trustee or any paying agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its written
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such paying agent with respect to such trust money, and all liability of the
Company as Trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.07. Reinstatement. If the Trustee or paying agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
10.02 or 10.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 10.02 or 10.03 hereof until such time as the
Trustee or paying agent is permitted to apply all such amounts in accordance
with Section 10.02 or 10.03 hereof, as the case may be; provided, however, that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Note to receive such payment
from the amounts held by the Trustee or paying agent.
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ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers, Directors,
Employees and Controlling Persons of Company Exempt from Individual Liability.
No recourse for the payment of the principal of, premium, if any, or interest on
any of the Notes or any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any Note, or because of the creation of any
indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future stockholder, officer, director, employee
or controlling person, as such, of the Company or of any successor Person,
either directly or through the Company or any successor Person, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Notes by
the Holders thereof and as part of the consideration for the issue of the Notes.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders. Nothing in this Indenture or in the Notes, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Notes, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Notes.
SECTION 11.03. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.04. Notices and Demands on Company, Trustee and Holders. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Notes to or
on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Company is filed by the Company with the Trustee)
to [ ], Attention: [ ], with a copy to [ ]. Any notice, direction, request or
demand by the Company or any Noteholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made at
the Corporate Trust Office.
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Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Note Register. 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. 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. The Trustee may waive notice
to it of any provision herein, and such waiver shall be deemed to be for its
convenience and discretion. 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, it shall be impracticable to mail notice to the Company and
Noteholders when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
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Any certificate, statement 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 that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Company,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Company, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Notes or the date fixed for
redemption of any Note shall not be a Business Day, then payment of interest or
principal 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 date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Section 310 to Section 317, inclusive, of the Trust Indenture
Act of 1939 (an "INCORPORATED PROVISION"), such incorporated provision shall
control.
SECTION 11.08. New York Law to Govern. This Indenture and each Note
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes including the obligations of the Company and any Guarantor and
the
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rights of Holders of the Notes arising out of or in connection with the Notes,
including the obligations of the Company and any Guarantor to pay all principal,
interest or other amounts payable under the Indenture and such Note, will be
governed by and shall be construed in accordance with the laws of said State,
without giving effect to the conflict of laws provisions thereof, except as may
otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of [ ], 1999.
XXXXXXXX COMMUNICATIONS GROUP, INC.,
as Issuer
By
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Title:
THE BANK OF NEW YORK,
as Trustee
By
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Title:
