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EXHIBIT 4.7
EXECUTION COPY
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INTERMEDIA COMMUNICATIONS INC.
$300,000,000
9 1/2% SENIOR NOTES DUE 2009
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SENIOR NOTE INDENTURE
Dated as of February 24, 1999
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SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
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Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1).............................................................................. 7.10
(a)(2).............................................................................. 7.10
(a)(3).............................................................................. N.A.
(a)(4).............................................................................. N.A.
(a)(5).............................................................................. 7.10
(b)................................................................................. 7.03; 7.10
(c)................................................................................. N.A.
311(a)................................................................................. 7.03; 7.11
(b)................................................................................. 7.03; 7.11
(c)................................................................................. N.A.
312(a)................................................................................. 2.05
(b)................................................................................. 10.03
(c)................................................................................. 10.03
313(a)................................................................................. 7.06
(b)(1).............................................................................. N.A.
(b)(2).............................................................................. 7.06
(c)................................................................................. 7.06; 10.02
(d)................................................................................. 7.06
314(a)................................................................................. 4.03; 4.04; 10.05
(b)................................................................................. N.A.
(c)(1).............................................................................. 10.04
(c)(2).............................................................................. 10.04
(c)(3).............................................................................. N.A.
(d)................................................................................. N.A.
(e)................................................................................. 10.05
(f)................................................................................. N.A.
315(a)................................................................................. 7.01; 7.02
(b)................................................................................. 7.05; 10.02
(c)................................................................................. 7.01
(d)................................................................................. 7.01
(e)................................................................................. 6.11
316(a)(last sentence).................................................................. 2.09
(a)(1)(A)........................................................................... 6.05
(a)(2).............................................................................. 6.04
(b)................................................................................. 6.06; 9.02
(c)................................................................................. 2.13; 9.04
317(a)(1).............................................................................. 6.08
(a)(2).............................................................................. 6.09
(b)................................................................................. 2.04
318(a)................................................................................. 10.01
(b)................................................................................. N.A.
(c)................................................................................. 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
SECTION 1.01. DEFINITIONS.........................................................................................1
SECTION 1.02. OTHER DEFINITIONS..................................................................................15
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..................................................16
SECTION 1.04. RULES OF CONSTRUCTION..............................................................................16
ARTICLE 2. THE SENIOR NOTES......................................................................................17
SECTION 2.01. FORM AND DATING....................................................................................17
SECTION 2.02. EXECUTION AND AUTHENTICATION.......................................................................17
SECTION 2.03. REGISTRAR AND PAYING AGENT.........................................................................18
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST................................................................18
SECTION 2.05. HOLDER LISTS.......................................................................................19
SECTION 2.06. TRANSFER AND EXCHANGE..............................................................................19
SECTION 2.07. REPLACEMENT NOTES..................................................................................30
SECTION 2.08. OUTSTANDING NOTES..................................................................................31
SECTION 2.09. TREASURY NOTES.....................................................................................31
SECTION 2.10. TEMPORARY NOTES....................................................................................31
SECTION 2.11. CANCELLATION.......................................................................................32
SECTION 2.12. DEFAULTED INTEREST.................................................................................32
SECTION 2.13. RECORD DATE........................................................................................32
SECTION 2.14. CUSIP NUMBER.......................................................................................32
ARTICLE 3. REDEMPTION AND CERTAIN REPURCHASES....................................................................32
SECTION 3.01. NOTICES TO TRUSTEE.................................................................................32
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED..................................................................33
SECTION 3.03. NOTICE OF REDEMPTION...............................................................................33
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.....................................................................34
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE........................................................................34
SECTION 3.06. SENIOR NOTES REDEEMED IN PART......................................................................34
SECTION 3.07. OPTIONAL REDEMPTION................................................................................35
SECTION 3.08. MANDATORY REDEMPTION...............................................................................35
SECTION 3.09. OFFER TO PURCHASE WITH EXCESS ASSET SALE PROCEEDS..................................................35
ARTICLE 4. COVENANTS.............................................................................................37
SECTION 4.01. PAYMENT OF NOTES...................................................................................37
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY....................................................................38
SECTION 4.03. REPORTS............................................................................................38
SECTION 4.04. COMPLIANCE CERTIFICATE.............................................................................39
SECTION 4.05. TAXES..............................................................................................39
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.....................................................................40
SECTION 4.07. RESTRICTED PAYMENTS................................................................................40
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SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES....................................................................................43
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK......................................44
SECTION 4.10. ASSET SALES........................................................................................46
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.......................................................................47
SECTION 4.12. LIENS..............................................................................................48
SECTION 4.13. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.....................................................48
SECTION 4.14. CORPORATE EXISTENCE................................................................................48
SECTION 4.15. OFFER TO PURCHASE UPON CHANGE OF CONTROL...........................................................48
SECTION 4.16. BUSINESS ACTIVITIES................................................................................49
SECTION 4.17. PAYMENTS FOR CONSENT...............................................................................49
SECTION 4.18. USE OF PROCEEDS....................................................................................50
ARTICLE 5. SUCCESSORS............................................................................................50
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS............................................................50
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED..................................................................51
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................................51
SECTION 6.01. EVENTS OF DEFAULT..................................................................................51
SECTION 6.02. ACCELERATION.......................................................................................53
SECTION 6.03. OTHER REMEDIES.....................................................................................53
SECTION 6.04. WAIVER OF PAST DEFAULTS............................................................................53
SECTION 6.05. CONTROL BY MAJORITY................................................................................54
SECTION 6.06. LIMITATION ON SUITS................................................................................54
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT......................................................54
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.........................................................................55
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...................................................................55
SECTION 6.10. PRIORITIES.........................................................................................55
SECTION 6.11. UNDERTAKING FOR COSTS..............................................................................56
ARTICLE 7. TRUSTEE...............................................................................................56
SECTION 7.01. DUTIES OF TRUSTEE..................................................................................56
SECTION 7.02. RIGHTS OF TRUSTEE..................................................................................57
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.......................................................................57
SECTION 7.04. TRUSTEE'S DISCLAIMER...............................................................................58
SECTION 7.05. NOTICE OF DEFAULTS.................................................................................58
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES..................................................58
SECTION 7.07. COMPENSATION AND INDEMNITY.........................................................................58
SECTION 7.08. REPLACEMENT OF TRUSTEE.............................................................................59
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC...................................................................60
SECTION 7.10. ELIGIBILITY, DISQUALIFICATION......................................................................60
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..................................................60
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................60
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE...........................................60
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.....................................................................60
SECTION 8.03. COVENANT DEFEASANCE................................................................................61
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.........................................................61
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS....................................................................62
SECTION 8.06. REPAYMENT TO COMPANY...............................................................................63
SECTION 8.07. REINSTATEMENT......................................................................................63
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................64
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES.........................................................64
SECTION 9.02. WITH CONSENT OF HOLDERS OF SENIOR NOTES............................................................64
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT................................................................65
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS..................................................................65
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES............................................................66
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC....................................................................66
ARTICLE 10. MISCELLANEOUS........................................................................................66
SECTION 10.01. TRUST INDENTURE ACT CONTROLS......................................................................66
SECTION 10.02. NOTICES...........................................................................................66
SECTION 10.03. COMMUNICATION BY HOLDERS OF SENIOR NOTES WITH OTHER
HOLDERS OF SENIOR NOTES.........................................................................67
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT................................................67
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.....................................................68
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.......................................................................68
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS....................................................................................68
SECTION 10.08. GOVERNING LAW.....................................................................................68
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.....................................................69
SECTION 10.10. SUCCESSORS........................................................................................69
SECTION 10.11. SEVERABILITY......................................................................................69
SECTION 10.12. COUNTERPART ORIGINALS.............................................................................69
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC..................................................................69
EXHIBITS
Exhibit A FACE OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
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INDENTURE dated as of February 24, 1999 between Intermedia
Communications Inc. (the "Company"), and SunTrust Bank, Central Florida,
National Association, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the holders of the 9 1/2% Senior
Notes due 2009 (the "Senior Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Security" means the global security in the form of
Exhibit A hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount of the Senior Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise, provided, however,
that beneficial ownership of 25% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction, the present value at the time of determination (discounted at a
rate consistent with accounting guidelines, as determined in good faith by the
Company) of the payments during the remaining term of the lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended) or until the earliest date on which the lessee may
terminate such lease without penalty or upon payment of a penalty (in which
case the rental payments shall include such penalty), after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water, utilities and similar charges.
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"Beneficial Owner" means a beneficial owner as defined in Rules 13d-3
and 13d-5 under the Exchange Act (or any successor rules), including the
provision of such Rules that a Person shall be deemed to have beneficial
ownership of all securities that such Person has a right to acquire within 60
days; provided that a Person will not be deemed a beneficial owner of, or to
own beneficially, any securities if such beneficial ownership (1) arises solely
as a result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the Exchange Act and (2)
is not also then reportable on Schedule 13D or Schedule 13G (or any successor
schedule) under the Exchange Act.
"Board of Directors" means, unless otherwise specified, the Board of
Directors of the Company or any authorized committee thereof.
"Board Resolution" means a resolution authorized by the Board of
Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be so required to be capitalized on the balance
sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock and (iii) in the case of a partnership,
partnership interests (whether general or limited) and any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, such partnership.
"Certificated Security" means a certificated Senior Note registered in
the name of the holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto, except that such Senior
Note shall not bear the Global Security Legend and shall not have the "Schedule
of Exchanges of Interests in the Global Security" attached thereto.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, to any Person or group (as such
term is used in Section 13(d)(3) and 14(d)(2) of the Exchange Act); (ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;
(iii) any Person or group (as defined above) is or becomes the Beneficial
Owner, directly or indirectly, of more than 50% of the total Voting Stock or
Total Common Equity of the Company, including by way of merger, consolidation
or otherwise; or (iv) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"Closing Price" on any Trading Day with respect to the per share price
of any shares of Capital Stock means the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if such shares of Capital Stock are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
Nasdaq National Market or, if such shares are not listed or admitted to trading
on any national securities exchange or quoted on Nasdaq National Market but the
issuer is a Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act)
and the principal securities exchange on which such shares are listed or
admitted to
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trading is a Designated Offshore Securities Market (as defined in Rule 902(a)
under the Securities Act), the average of the reported closing bid and asked
prices regular way on such principal exchange, or, if such shares are not
listed or admitted to trading on any national securities exchange or quoted on
Nasdaq National Market and the issuer and principal securities exchange do not
meet such requirements, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
that is selected from time to time by the Company for that purpose and is
reasonably acceptable to the Trustee.
"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 Cash Flow Leverage Ratio" with respect to any Person
means the ratio of the Consolidated Indebtedness of such Person to the
Consolidated EBITDA of such Person for the relevant period; provided, however,
that: (1) if the Company or any Subsidiary of the Company has incurred any
Indebtedness (including Acquired Debt) or if the Company has issued any
Disqualified Stock or if any Subsidiary of the Company has issued any Preferred
Stock since the beginning of such period that remains outstanding on the date
of such determination or if the transaction giving rise to the need to
calculate the Consolidated Cash Flow Leverage Ratio is an incurrence of
Indebtedness (including Acquired Debt) or the issuance of Disqualified Stock by
the Company, Consolidated EBITDA and Consolidated Indebtedness for such period
will be calculated after giving effect on a pro forma basis to: (A) such
Indebtedness, Disqualified Stock or Preferred Stock, as applicable, as if such
Indebtedness had been incurred or such stock had been issued on the first day
of such period; (B) the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness or sale of stock as if such discharge had occurred on the first
day of such period; and (C) the interest income realized by the Company or its
Subsidiaries on the proceeds of such Indebtedness or of such stock sale, to the
extent not yet applied at the date of determination, assuming such proceeds
earned interest at the rate in effect on the date of determination from the
first day of such period through such date of determination; (2) if since the
beginning of such period the Company or any Subsidiary of the Company has made
any sale of assets (including, without limitation, any Asset Sales or pursuant
to any Sale and Leaseback Transaction), Consolidated EBITDA for such period
will be: (A) reduced by an amount equal to Consolidated EBITDA (if positive)
directly attributable to the assets which are the subject of such sale of
assets for such period; or (B) increased by an amount equal to Consolidated
EBITDA (if negative) directly attributable thereto for such period; and (3) if
since the beginning of such period the Company or any Subsidiary of the Company
(by merger or otherwise) has made an Investment in any Subsidiary of the
Company (or any Person which becomes a Subsidiary of the Company) or has made
an acquisition of assets, including, without limitation, any acquisition of
assets occurring in connection with a transaction causing a calculation of
Consolidated EBITDA to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, Consolidated EBITDA for
such period will be calculated after giving pro forma effect thereto (including
the incurrence of any Indebtedness (including Acquired Debt)) as if such
Investment or acquisition occurred on the first day of such period. For
purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the pro forma calculations will be determined in good
faith by a responsible financial or accounting Officer of the Company,
provided, however, that such Officer shall assume: (i) the historical sales and
gross profit margins associated with such assets for any consecutive 12-month
period ended prior to the date of purchase (provided that the first month of
such 12-month period will be no more than 18 months prior to such date of
purchase); and (ii) other expenses as if such assets had been owned by the
Company since the first day of such period. If any Indebtedness (including,
without
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limitation, Acquired Debt) bears a floating rate of interest and is
being given pro forma effect, the interest on such Indebtedness will be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period.
"Consolidated EBITDA" as of any date of determination means the
Consolidated Net Income for such period (but without giving effect to
adjustments, accruals, deductions or entries resulting from purchase
accounting, extraordinary losses or gains and any gains or losses from any
Asset Sales), plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) provision for taxes based on income or profits of
such Person and its Subsidiaries for such period; (ii) Consolidated Interest
Expense; (iii) depreciation, amortization (including amortization of goodwill
and other intangibles); and (iv) other non-cash charges (excluding any such
non-cash charge to the extent that it represents an accrual of or reserve for
cash charges in any future period or amortization of a prepaid cash expense
that was paid in a prior period and excluding non-cash interest and dividend
income) of such Person and its Subsidiaries for such period, in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation, amortization, interest expense and other non-cash charges of, a
Subsidiary of the referent Person shall be added to Consolidated Net Income to
compute Consolidated EBITDA only to the extent (and in same proportion) that
the Net Income of such Subsidiary was included in calculating the Consolidated
Net Income of such Person and only if a corresponding amount would be permitted
at the date of determination to be dividended to the Company by such
Subsidiary, or loaned to the Company by any such Subsidiary, without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"Consolidated Indebtedness" means, with respect to any Person, as of
any date of determination, the aggregate amount of Indebtedness of such Person
and its Subsidiaries as of such date calculated on a consolidated basis in
accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any Person, for any period,
the aggregate of the following for such Person for such period determined on a
consolidated basis in accordance with GAAP: (a) the amount of interest in
respect of Indebtedness (including amortization of original issue discount,
amortization of debt issuance costs, and non-cash interest payments on any
Indebtedness, the interest portion of any deferred payment obligation and after
taking into account the effect of elections made under any Interest Rate
Agreement, however denominated, with respect to such Indebtedness); (b) the
amount of Redeemable Dividends (to the extent not already included in
Indebtedness in determining Consolidated Interest Expense for the relevant
period); and (c) the interest component of rentals in respect of any Capital
Lease Obligation paid, in each case whether accrued or scheduled to be paid or
accrued by such Person during such period to the extent such amounts were
deducted in computing Consolidated Net Income, determined on a consolidated
basis in accordance with GAAP. For purposes of this definition, interest on a
Capital Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by such Person to be the rate of interest implicit in
such Capital Lease Obligation in accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that:
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(i) the Net Income of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person or a Subsidiary thereof;
(ii) the Net Income of any Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or other distributions by
that Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary or its
stockholders;
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded;
(iv) the cumulative effect of a change in accounting principles shall
be excluded; and
(v) the Net Income of any Unrestricted Subsidiary shall be excluded,
whether or not distributed to the Company or one of its Subsidiaries.
"Contingent Investment" means, with respect to any Person, any
guarantee by such Person of the performance of another Person or any commitment
by such Person to invest in another Person. Any Investment that consists of a
Contingent Investment shall be deemed made at the time that the guarantee of
performance or the commitment to invest is given, and the amount of such
Investment shall be the maximum monetary obligation under such guarantee of
performance or commitment to invest. To the extent that a Contingent Investment
is released or lapses without payment under the guarantee of performance or the
commitment to invest, such Investment shall be deemed not made to the extent of
such release or lapse. With respect to any Contingent Investment, the payment
of the guarantee of performance or the payment under the commitment to invest
shall not be deemed to be an additional Investment.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Issue Date or (ii) was nominated for election or
elected to such Board of Directors with the affirmative vote of a majority of
the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facility" means any credit facility entered into by and among
the Company and one or more commercial banks or financial institutions,
providing for senior term or revolving credit borrowings of a type similar to
credit facilities typically entered into by commercial banks and financial
institutions, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, as such credit
facility and related agreements may be amended, extended, refinanced, renewed,
restated, replaced or refunded from time to time.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Senior Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Senior
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Notes, until a successor shall have been appointed and become such pursuant to
the applicable provision of this Indenture, and, thereafter, "Depositary" shall
mean or include such successor.
"Disqualified Stock" means any Capital Stock to the extent that, and
only to the extent that, 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 date on which the Senior Notes mature,
provided, however, that any Capital Stock which would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require the Company to repurchase or redeem such Capital Stock upon the
occurrence of a Change of Control occurring prior to the final maturity of the
Senior Notes shall not constitute Disqualified Stock if the change in control
provisions applicable to such Capital Stock are no more favorable to the
holders of such Capital Stock than the provisions applicable to the Senior
Notes contained in Section 4.15 hereof and such Capital 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 Senior Notes as
are required to be repurchased pursuant to Section 4.15 hereof.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500.0 million or its equivalent
in foreign currency, whose debt is rated "A" (or higher) according to S&P or
Moody's at the time as of which any investment or rollover therein is made.
"Eligible Receivable" means any Receivable not more than 90 days past
due under its scheduled payment terms.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock or that are measured by the value of
Capital Stock (but excluding any debt security that is convertible into or
exchangeable for Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder.
"Exchange Notes" means the Senior Notes issued in Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Senior Note
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Senior Note Registration Rights Agreement.
"Existing Indebtedness" means the Existing Senior Notes and all other
Indebtedness of the Company and its Subsidiaries in existence on the Issue
Date.
"Existing Senior Notes" means the Company's 12 1/2% Senior Discount
Notes due 2006, the Company's 11 1/4 % Senior Discount Notes due 2007, the
Company's 87/8% Senior Notes due 2007, the Company's 8 1/2% Senior Notes due
2008 and the Company's 8.60% Senior Notes due 2008.
"Fair Market Value" means with respect to any asset or property, the
sale value that would be obtained in an arm's length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
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"GAAP" means generally accepted accounting principles 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 may be approved by a significant segment of the accounting
profession of the United States, which are in effect on the Issue Date.
"Global Security" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Security,
substantially in the form of Exhibit A.
"Global Security Legend" means the legend set forth in Section
2.07(g)(ii) to be placed on all Global Securities issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under Interest Rate Agreements.
"Holder" and "holder" shall mean a Person in whose name a Senior Note
is registered.
"IAI Global Security" means the Global Security in the form of Exhibit
A hereto bearing the Global Security Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its nominee
that will be issued in a denomination equal to the outstanding principal amount
of the Senior Notes sold to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of: (i) borrowed money; (ii)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof); (iii) the balance
deferred and unpaid of the purchase price of any property (including pursuant
to capital leases); or (iv) representing any Hedging Obligations, except any
such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing (other than Hedging Obligations or letters of
credit) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, all indebtedness of others secured by a Lien
on any asset of such Person (whether or not such indebtedness is assumed by
such Persons), all obligations to purchase, redeem, retire, defease or
otherwise acquire for value any Disqualified Stock or any warrants, rights or
options to acquire such Disqualified Stock valued, in the case of Disqualified
Stock, at the greatest amount payable in respect thereof on a liquidation
(whether voluntary or involuntary) plus accrued and unpaid dividends, the
liquidation value of any Preferred Stock issued by Subsidiaries of such Person
plus accrued and unpaid dividends, and also includes, to the extent not
otherwise included, the Guarantee of items that would be included within this
definition and any amendment, supplement, modification, deferral, renewal,
extension or refunding of any of the above; notwithstanding the foregoing, in
no event will performance bonds or similar security for performance be deemed
Indebtedness so long as such performance bonds or similar security for
performance would not appear as a liability on a balance sheet of such Person
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prepared in accordance with GAAP; and provided, further that the amount of any
Indebtedness in respect of any Guarantee shall be the maximum principal amount
of the Indebtedness so guaranteed.
"Indenture" means this Senior Note Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Security through a Participant.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc., NationsBanc
Xxxxxxxxxx Securities LLC and Warburg Dillon Read LLC, as initial purchasers in
the Offering.
"Interest Rate Agreements" means (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans,
Guarantees, Contingent Investments, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities of any
other Person and all other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP; provided, however, that
any investment to the extent made with Capital Stock of the Company (other than
Disqualified Stock) shall not be deemed an "Investment" for purposes of this
Indenture.
"Issue Date" means February 24, 1999.
"Joint Venture" means a Person in the Telecommunications Business in
which the Company holds less than a majority of the shares of Voting Stock or
an Unrestricted Subsidiary in the Telecommunications Business.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all holders of the Senior Notes for use by such
holders in connection with the Exchange Offer.
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Senior Note Registration Rights Agreement.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or
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agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Make-Whole Amount" means, with respect to any Senior Note, an amount
equal to the excess, if any, of: (i) the present value of the remaining
principal, premium and interest payments that would be payable with respect to
such Senior Note if such Senior Note were redeemed on March 1, 2004, computed
using a discount rate equal to the Treasury Rate plus 50 basis points; over
(ii) the outstanding principal amount of such Senior Note.
"Make-Whole Average Life" means, with respect to any date of
redemption of Senior Notes, the number of years (calculated to the nearest
one-twelfth) from such redemption date to March 1, 2004.
"Make-Whole Price" means, with respect to any Senior Note, the greater
of (i) the sum of the principal amount of such Senior Note and the Make-Whole
Amount with respect to such Senior Note and (ii) the redemption price of such
Senior Note on March 1, 2004.
"Marketable Securities" means:
(i) Government Securities;
(ii) any certificate of deposit maturing not more than 270 days after
the date of acquisition issued by, or time deposit of, an Eligible
Institution;
(iii) commercial paper maturing not more than 270 days after the date
of acquisition issued by a corporation (other than an Affiliate of the
Company) with a rating, at the time as of which any investment therein is
made, of "A-1" (or higher) according to S&P or "P-1" (or higher) according
to Moody's;
(iv) any banker's acceptances or money market deposit accounts issued
or offered by an Eligible Institution; and
(v) any fund investing exclusively in investments of the types
described in clauses (i) through (iv) above.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however: (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to Sale and Leaseback Transactions) or (b)
the disposition of any securities by such Person or any of its Subsidiaries or
the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries; and (ii) any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale, net of the
direct costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to
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be applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets. Net Proceeds shall
exclude any non-cash proceeds received from any Asset Sale, but shall include
such proceeds when and as converted by the Company or any Subsidiary of the
Company to cash.
"Note Custodian" means the Trustee, as custodian with respect to the
Senior Notes in global form, or any successor entity thereto.
"Offering" means the offering of the Senior Notes pursuant to the
Offering Memorandum.
"Offering Memorandum" means the offering memorandum of the Company,
dated February 19, 1999, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
Controller, Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed by two Officers of
the Company, one of whom must be the principal executive officer, principal
financial officer, treasurer or principal accounting officer of the Company.
"Opinion of Counsel" means an opinion from legal counsel, who may be
an employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
"Pari Passu Notes" means any notes issued by the Company which, by
their terms and the terms of any indenture governing such notes, have an
obligation to be repurchased by the Company upon the occurrence of an Asset
Sale.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Participating Broker-Dealer" means any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer.
"Permitted Investment" means: (a) any Investments in the Company or
any Subsidiary of the Company; (b) any Investments in Marketable Securities;
(c) Investments by the Company or any Subsidiary of the Company in a Person, if
as a result of such Investment: (i) such Person becomes a Subsidiary of the
Company; or (ii) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Subsidiary of the Company; (d) any
Investments in property or assets to be used in (A) any line of business in
which the Company or any of its Subsidiaries was engaged on the Issue Date or
(B) any Telecommunications Business; (e) Investments in any Person in
connection with the acquisition of such Person or substantially all of the
property or assets of such Person by the Company or any Subsidiary of the
Company; provided that within 180 days from the first date of any such
Investment, either: (A) such Person becomes a Subsidiary of the Company or any
of its Subsidiaries; or (B) the amount of any such Investment is repaid in full
to the Company or any of its Subsidiaries; (f) Investments pursuant to any
agreement or obligation of the Company or a Subsidiary, in effect on the Issue
Date or on the date a subsidiary becomes a Subsidiary (provided that any such
agreement was not entered into in contemplation of such subsidiary becoming a
Subsidiary), to make such Investments; (g) Investments in
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prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (h) Hedging
Obligations permitted to be incurred pursuant to Section 4.09(b) hereof; (i)
bonds, notes, debentures or other securities received as a result of Asset
Sales permitted under Section 4.10 hereof; and (j) the Investment deemed to
have been made by the Company at such time as the Web Hosting Subsidiary ceases
to be a Subsidiary of the Company by reason of the issuance or sale of Equity
Interests in the Web Hosting Subsidiary to the extent that the book value of
such Investment at the time such Investment is deemed to have been made does
not exceed $200.0 million in the aggregate.
"Permitted Liens" means (i) Liens securing Indebtedness (including
Capital Lease Obligations) permitted to be incurred pursuant to Sections
4.09(b)(i), 4.09(b)(ii) and 4.09(b)(iv) hereof; (ii) Liens in favor of the
Company; (iii) Liens on property of a Person existing at the time such Person
is merged into or consolidated with the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the Issue Date; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings timely instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed $5.0
million at any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Subsidiary; (ix) Liens on Telecommunications Related Assets existing during the
time of the construction thereof; (x) Liens on Receivables to secure
Indebtedness permitted to be incurred pursuant to Section 4.09(b) hereof, but
only to the extent that the outstanding amount of the Indebtedness secured by
such Liens would not represent more than 80% of Eligible Receivables; and (xi)
Liens to secure any Permitted Refinancing of any Indebtedness secured by Liens
referred to in the foregoing clauses (i), (iii), (v) or (x); but only to the
extent that such Liens do not extend to any other property or assets and the
principal amount of the Indebtedness secured by such Liens is not increased.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to 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.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
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"Public Offering" means an underwritten offering of Common Stock of
the Company registered under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Receivables" means, with respect to any Person, all of the following
property and interests in property of such person or entity, whether now
existing or existing in the future or hereafter acquired or arising: (i)
accounts; (ii) accounts receivable, including, without limitation, all rights
to payment created by or arising from sales of goods, leases of goods or the
rendition of services no matter how evidenced, whether or not earned by
performance; (iii) all unpaid seller's or lessor's rights including, without
limitation, rescission, replevin, reclamation and stoppage in transit, relating
to any of the foregoing after creation of the foregoing or arising therefrom;
(iv) all rights to any goods or merchandise represented by any of the
foregoing, including, without limitation, returned or repossessed goods; (v)
all reserves and credit balances with respect to any such accounts receivable
or account debtors; (vi) all letters of credit, security, or Guarantees for any
of the foregoing; (vii) all insurance policies or reports relating to any of
the foregoing; (viii) all collection of deposit accounts relating to any of the
foregoing; (ix) all proceeds of any of the foregoing; and (x) all books and
records relating to any of the foregoing.
"Redeemable Dividend" means, for any dividend with regard to
Disqualified Stock and Preferred Stock, the quotient of the dividend divided by
the difference between one and the maximum statutory federal income tax rate
(expressed as a decimal number between 1 and 0) then applicable to the issuer
of such Disqualified Stock or Preferred Stock.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Certificated Security" means a Certificated Security
bearing the Private Placement Legend.
"Restricted Global Security" means the 144A Global Security and the
IAI Global Security, which shall bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Corporation and its successors.
"Sale and Leaseback Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which any property (other than
Capital Stock) is sold by such Person or a Subsidiary of such Person and is
thereafter leased back from the purchaser or transferee thereof by such Person
or one of its Subsidiaries.
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"Securities Act" means the Securities Act of 1933, as amended (or any
successor act), and the rules and regulations thereunder.
"Senior Indebtedness" means any Indebtedness permitted to be incurred
by the Company under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is subordinated
in right of payment to the Senior Notes. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness will not include: (i) any
liability for federal, state, local or other taxes owed or owing by the
Company; (ii) any Indebtedness of the Company to any of its Subsidiaries or
other Affiliates; (iii) any trade payables; or (iv) any Indebtedness that is
incurred in violation of this Indenture.
"Senior Note Registration Rights Agreement" means the Senior Note
Registration Rights Agreement dated as of the date hereof between the Company
and the Initial Purchasers in respect of the Senior Notes.
"Senior Subordinated Note Indenture" means the indenture governing the
Senior Subordinated Notes, as amended or supplemented from time to time.
"Senior Subordinated Notes" means the Company's 12 1/4% Senior
Subordinated Discount Notes due 2009.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Senior Note Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Strategic Investor" means, with respect to any sale of the Company's
Capital Stock, any Person which, both as of the Trading Day immediately before
the day of such sale and the Trading Day immediately after the day of such
sale, has, or whose parent has, a Total Market Capitalization of at least $1.0
billion on a consolidated basis. In calculating Total Market Capitalization for
the purpose of this definition, the consolidated Indebtedness of such Person,
solely when calculated as of the Trading Day immediately after the day of such
sale, will be calculated after giving effect to such sale (including any
Indebtedness incurred in connection with such sale). For purposes of this
definition, the term "parent" means any Person of which the referent Strategic
Investor is a Subsidiary.
"Subsidiary" of any Person means: (i) any corporation, association or
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or a combination thereof; and (ii) any
partnership: (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person; or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person or
any combination thereof; provided that any Unrestricted Subsidiary shall be
excluded from this definition of "Subsidiary."
"Telecommunications Business" means, when used in reference to any
Person, that such Person is engaged primarily in the business of: (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased transmission facilities; (ii) creating,
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developing or marketing communications related network equipment, software and
other devices for use in a Telecommunications Business; or (iii) evaluating,
participating or pursuing any other activity or opportunity that is related to
those identified in (i) or (ii) 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.
"Telecommunications Related Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible, used
in connection with a Telecommunications Business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Section 9.03 hereof.
"Total Common Equity" of any Person means, as of any date of
determination, the product of: (i) the aggregate number of outstanding primary
shares of Common Stock of such Person on such day (which shall not include any
options or warrants on, or securities convertible or exchangeable into, shares
of Common Stock of such Person); and (ii) the average Closing Price of such
Common Stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (ii) of the preceding sentence
shall be determined by the Board of Directors of the Company in good faith and
evidenced by a resolution of the Board of Directors filed with the Trustee.
"Total Market Capitalization" of any Person means, as of any day of
determination (and as modified for purposes of the definition of "Strategic
Investor"), the sum of: (1) the consolidated Indebtedness of such Person and
its Subsidiaries (except in the case of the Company, in which case of the
Company and its Subsidiaries) on such day; plus (2) the product of: (i) the
aggregate number of outstanding primary shares of Common Stock of such Person
on such day (which shall not include any options or warrants on, or securities
convertible or exchangeable into, shares of Common Stock of such Person); and
(ii) the average Closing Price of such Common Stock over the 20 consecutive
Trading Days immediately preceding such day; plus (3) the liquidation value of
any outstanding shares of Preferred Stock of such Person on such day; less (4)
cash and cash equivalents (other than restricted cash and restricted cash
equivalents) as presented on such Person's consolidated balance sheet on such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (2) of the preceding sentence
shall be determined by the Company's Board of Directors in good faith and
evidenced by a resolution of the Board of Directors filed with the Trustee.
"Trading Day," with respect to a securities exchange or automated
quotation system, means a day on which such exchange or system is open for a
full day of trading.
"Treasury Rate" means, at any date of computation, the yield to
maturity as of such date (as compiled 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 of 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
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weekly average yield on actually traded United States treasury securities
adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Certificated Security" means one or more Certificated
Securities that do not and are not required to bear the Private Placement
Legend.
"Unrestricted Global Security" means a permanent global security in
the form of Exhibit A attached hereto that bears the Global Security Legend and
the "Schedule of Exchanges of Interests in the Global Security" attached
thereto, and that is deposited with and registered in the name of the
Depositary, representing a series of Senior Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution.
"Vendor Indebtedness" means any Indebtedness of the Company or any
Subsidiary incurred: (i) in connection with the acquisition or construction of
Telecommunications Related Assets; and (ii) to pay regularly scheduled interest
on such Indebtedness pursuant to the terms 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 so
long as no senior class of securities has such voting power by reason of any
contingency.
"Web Hosting Subsidiary" means the Subsidiary of the Company
substantially all of the assets of which consist of assets used exclusively in
the conduct of the Company's Internet Web hosting business.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (a) the
then outstanding principal amount of such Indebtedness; into (b) the total of
the product obtained by multiplying: (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof; by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; provided, that with respect
to Capital Lease Obligations, that maturity shall be calculated after giving
effect to all renewal options by the Lessee.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction".................................... 4.11
"Asset Sale"............................................... 4.10
"Bankruptcy Custodian"..................................... 6.01
"Bankruptcy Law"........................................... 4.01
"Change of Control Offer".................................. 4.15
"Change of Control Payment"................................ 4.15
"Change of Control Payment Date"........................... 4.15
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Defined in
Term Section
"Commission"............................................... 4.03
"Covenant Defeasance"...................................... 8.03
"Event of Default"......................................... 6.01
"Excess Proceeds".......................................... 4.10
"Excess Proceeds Offer".................................... 3.09
"incur".................................................... 4.09
"Legal Defeasance"......................................... 8.02
"Offer Amount"............................................. 3.09
"Offer Period"............................................. 3.09
"Paying Agent"............................................. 2.03
"Payment Default".......................................... 6.01
"Permitted Refinancing".................................... 4.09
"Purchase Date"............................................ 3.09
"Refinance"................................................ 4.09
"Registrar"................................................ 2.03
"Restricted Payments"...................................... 4.07
"Retire"................................................... 4.07
"SEC Reports".............................................. 4.03
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Notes;
"indenture security holder" means a holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Senior Notes means the Company and any successor
obligor upon the Senior Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a capitalized term has the meaning assigned to it under this
Article 1;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
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(3) "or" is not exclusive;
(4) "including" means including without limitation; and
(5) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2.
THE SENIOR NOTES
SECTION 2.01. FORM AND DATING.
The Senior Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Senior Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Senior Note shall be dated the date of its authentication. The
Senior Notes shall be in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Senior Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
Senior Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Security Legend and the
"Schedule of Exchanges in the Global Security" attached thereto). Senior Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Security Legend and without the
"Schedule of Exchanges of Interests in the Global Security" attached thereto).
Each Global Security shall represent such of the outstanding Senior Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Senior Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Senior
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Senior Notes represented thereby shall be made
by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the holder thereof as required by Section
2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer of the Company shall sign the Senior Notes for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid. In addition, if a Person is not an Officer at the time a
Senior Note is authenticated, but becomes an Officer on or prior to the
delivery of the Senior Note, the Senior Note shall nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee. The signature of the
Trustee shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture.
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The Trustee shall, upon a written order of the Company signed by an
Officer of the Company, authenticate Senior Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Senior Notes. The
aggregate principal amount of Senior Notes outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Senior Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the
Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Senior Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
holder. The Company shall notify the Trustee and the Trustee shall notify the
holders of the Senior Notes in writing of the name and address of any Agent not
a party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar. The Company
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the provisions of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails
to give the foregoing notice, the Trustee shall act as such, and shall be
entitled to appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global
Securities. Except as otherwise specifically provided herein, (i) all
references in this Indenture to the Trustee shall be deemed to refer to the
Trustee in its capacity as Trustee and in its capacities as Registrar and
Paying Agent and (ii) every provision of this Indenture relating to the conduct
of or affecting the liability of or offering protection, immunity or indemnity
to the Trustee shall be deemed to apply with the same force and effect to the
Trustee acting in its capacities as Paying Agent and Registrar.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Senior
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the
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Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent and Registrar for the Senior
Notes.
SECTION 2.05. HOLDER LISTS.
If it is the Registrar, the Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the holders of the Senior Notes and the Company shall otherwise
comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Certificated Securities if (i)
the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Certificated Securities and delivers a written notice
to such effect to the Trustee. Upon the occurrence of either of the preceding
events in (i) or (ii) above, Certificated Securities shall be issued in such
names as the Depositary shall instruct the Trustee. Global Securities also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Senior Note authenticated and delivered in exchange for, or
in lieu of, a Global Security or any portion thereof, pursuant to this Section
2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in
the form of, and shall be, a Global Security. A Global Security may not be
exchanged for another Senior Note other than as provided in this Section
2.06(a), however beneficial interests in a Global Security may be transferred
and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. The Trustee shall have no obligation to ascertain the
Depositary's compliance with any such restrictions on transfer. Transfers of
beneficial interests in the Global Securities also shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement Legend. Beneficial interests in any
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Unrestricted Global Security may be transferred only to Persons who
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Securities. In connection with all transfers and exchanges
of beneficial interests (other than transfers of beneficial interests
in a Global Security to Persons who take delivery thereof in the form
of a beneficial interest in the same Global Security), the transferor
of such beneficial interest must deliver to the Registrar either (A)
(1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a
beneficial interest in the specified Global Security in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Certificated Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Certificated
Security shall be registered to effect the transfer or exchange
referred to in (1) above. Upon an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter
of Transmittal delivered by the holder of such beneficial interests in
the Restricted Global Securities. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Securities contained in this Indenture, the Senior Notes and
otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Security pursuant
to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Security. Beneficial interests in any Restricted Global
Security may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in another Restricted Global
Security if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of
a beneficial interest in the IAI Global Security, then the
transferor must deliver (x) a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof, (y) to the extent required by item 2(d) of Exhibit B
hereto, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance
with the Securities Act and such beneficial interest is being
transferred in compliance with any applicable blue sky
securities laws of any State of the United States and (z) if
the transfer is being made to an Institutional Accredited
Investor and effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A under the Securities Act or Rule 144 under the Securities
Act, a certificate from the transferee in the form of Exhibit D
hereto.
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(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Security for Beneficial Interests in the
Unrestricted Global Security. Beneficial interests in any Restricted
Global Security may be exchanged by any holder thereof for a
beneficial interest in the Unrestricted Global Security or transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Security if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Senior Note
Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Senior Note
Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Senior Note Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in
a Restricted Global Security proposes to exchange such
beneficial interest for a beneficial interest in the
Unrestricted Global Security, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof;
(2) if the holder of such beneficial interest in
a Restricted Global Security proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Security, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (3) thereof;
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the
Securities Act, and such beneficial interest is being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the
United States.
If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted Global
Security has not yet been issued, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal
amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
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Beneficial interests in an Unrestricted Global Security
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in any Restricted Global
Security.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Securities.
(i) If any holder of a beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Certificated Security or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Certificated
Security, then, upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Certificated Security, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)(a)
thereof;
(D) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than that listed in subparagraph (B) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2)(d) thereof, a
certificate from the transferee to the effect set forth in
Exhibit D hereof and, to the extent required by item 2(d) of
Exhibit B, an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act and
such beneficial interest is being transferred in compliance
with any applicable blue sky securities laws of any State of
the United States;
(E) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Certificated Security in the appropriate principal
amount. Certificated Securities issued in exchange for beneficial
interests in a Restricted Global Security pursuant to this Section
2.06(c) shall be registered in such names and in such authorized
denominations as the holder shall instruct the
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Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Certificated
Securities to the Persons in whose names such Senior Notes are so
registered. Certificated Securities issued in exchange for a
beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding 2.06(c)(i), a holder of a beneficial
interest in a Restricted Global Security may exchange such beneficial
interest for an Unrestricted Certificated Security or may transfer
such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Certificated Security only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Senior Note
Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Senior Note
Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Senior Note Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in
a Restricted Global Security proposes to exchange such
beneficial interest for a Certificated Security that
does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b)
thereof;
(2) if the holder of such beneficial interest in
a Restricted Global Security proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Certificated Security that does
not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the
Securities Act, and such beneficial interest in a
Restricted Global Security is being exchanged or
transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
(iii) If any holder of a beneficial interest in an Unrestricted
Global Security proposes to exchange such beneficial interest for a
Certificated Security or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Certificated
Security, then, upon
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satisfaction of the conditions set forth in Section 2.06(b)(ii), the
Trustee shall cause the aggregate principal amount of the applicable
Global Security to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Certificated Security in the appropriate principal amount.
Certificated Securities issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall be registered in such
names and in such authorized denominations as the holder shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver
such Certificated Securities to the Persons in whose names such Senior
Notes are so registered. Certificated Securities issued in exchange
for a beneficial interest pursuant to this section 2.06(c)(iii) shall
not bear the Private Placement Legend. Beneficial interests in an
Unrestricted Global Security cannot be exchanged for a Certificated
Security bearing the Private Placement Legend or transferred to a
Person who takes delivery thereof in the form of a Certificated
Security bearing the Private Placement Legend.
(d) Transfer or Exchange of Certificated Securities for Beneficial
Interests.
(i) If any holder of Restricted Certificated Securities
proposes to exchange such Senior Notes for a beneficial interest in a
Restricted Global Security or to transfer such Certificated Securities
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Security, then, upon receipt by the
Registrar of the following documentation (all of which may be
submitted by facsimile):
(A) if the holder of such Restricted Certificated
Securities proposes to exchange such Senior Notes for a
beneficial interest in a Restricted Global Security, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Certificated Securities are being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Certificated Securities are being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item
(2)(a) thereof;
(D) if such Certificated Securities are being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than that listed in subparagraph (B)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2)(d) thereof, a
certificate from the transferee to the effect set forth in
Exhibit D hereof and, to the extent required by item 2(d) of
Exhibit B, an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act and
such Certificated Securities are being transferred in
compliance with any applicable blue sky securities laws of any
State of the United States;
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(E) if such Certificated Securities are being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2)(b) thereof; or
(F) if such Certificated Securities are being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item
(2)(c) thereof,
the Trustee shall cancel the Certificated Securities, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Security, in
the case of clause (B) above, the 144A Global Security, and in all
other cases the appropriate Global Security.
(ii) A holder of Restricted Certificated Securities may
exchange such Senior Notes for a beneficial interest in the
Unrestricted Global Security or transfer such Restricted Certificated
Securities to a Person who takes delivery thereof in the form of a
beneficial interest in the Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Senior Note
Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Senior Note
Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Senior Note Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Certificated Securities
proposes to exchange such Senior Notes for a beneficial
interest in the Unrestricted Global Security, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (l)(c)
thereof;
(2) if the holder of such Certificated Securities
proposes to transfer such Senior Notes to a Person who
shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Security, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (3)
thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the
Securities Act, and such Certificated
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Securities are being exchanged or transferred in
compliance with any applicable blue sky securities
laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Certificated
Securities and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Security.
(iii) A holder of Unrestricted Certificated Securities may
exchange such Senior Notes for a beneficial interest in the
Unrestricted Global Security or transfer such Certificated Securities
to a Person who takes delivery thereof in the form of a beneficial
interest in the Unrestricted Global Security. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
Unrestricted Certificated Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global
Security.
If any such exchange or transfer from a Certificated Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Certificated Securities. Upon request by
a holder of Certificated Securities and such holder's compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer
or exchange of Certificated Securities. Prior to such registration of transfer
or exchange, the requesting holder shall present or surrender to the Registrar
the Certificated Securities duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such holder or by his attorney, duly authorized in writing. In addition, the
requesting holder shall provide any additional certifications, documents and
information, as applicable, pursuant to the provisions of this Section 2.06(e).
(i) Restricted Certificated Securities may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of Restricted Certificated Securities if the Registrar receives
the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver (x) a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof, (y) to the extent required by item 2(d) of Exhibit
B hereto, an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such transfer is in
compliance with the Securities Act and such beneficial interest
is being transferred in compliance with any applicable blue sky
securities laws of any State of the United States and (z) if
the transfer is being made to an Institutional Accredited
Investor and effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A under the Securities Act or Rule 144 under the Securities
Act, a certificate from the transferee in the form of Exhibit D
hereto.
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(ii) Restricted Certificated Securities may be exchanged by any
holder thereof for an Unrestricted Certificated Security or
transferred to Persons who take delivery thereof in the form of an
Unrestricted Certificated Security if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Senior Note
Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Senior Note
Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Senior Note Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Certificated
Securities proposes to exchange such Senior Notes for an
Unrestricted Certificated Security, a certificate from
such holder in the form of Exhibit C hereto, including
the certifications in item (1)(a) thereof;
(2) if the holder of such Restricted Certificated
Securities proposes to transfer such Senior Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Certificated Security, a certificate from
such holder in the form of Exhibit B hereto, including
the certifications in item (3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the
Securities Act, and such Restricted Certificated
Security is being exchanged or transferred in compliance
with any applicable blue sky securities laws of any
State of the United States.
(iii) A holder of Unrestricted Certificated Securities may
transfer such Senior Notes to a Person who takes delivery thereof in
the form of an Unrestricted Certificated Security. Upon receipt of a
request for such a transfer, the Registrar shall register the
Unrestricted Certificated Securities pursuant to the instructions from
the holder thereof. Unrestricted Certificated Securities cannot be
exchanged for or transferred to Persons who take delivery thereof in
the form of a Restricted Certificated Security.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Senior Note Registration Rights Agreement, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted
Global Securities in an aggregate principal amount equal to the principal
amount of the
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beneficial interests in the Restricted Global Securities tendered for
acceptance by persons that are not (x) broker-dealers, (y) Persons
participating in the distribution of the Exchange Notes or (z) Persons who are
affiliates (as defined in Rule 144) of the Company and accepted for exchange in
the Exchange Offer and (ii) Unrestricted Certificated Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Certificated Securities accepted for exchange in the Exchange Offer. Concurrent
with the issuance of such Senior Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the holders of Certificated Securities
so accepted Certificated Securities in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Securities and Certificated Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (b) below, each
Global Security and each Certificated Security (and all Senior
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY OR ANY INTEREST OR
PARTICIPATION HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES (A) TO OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE
COMPANY, (2) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
(5) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) OR (6) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND IN THE CASE OF A TRANSFER PURSUANT
TO CLAUSE (5) OR (6), BASED ON AN OPINION OF COUNSEL IF
THE COMPANY SO
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REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Security
or Certificated Security issued pursuant to subparagraphs
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.06 (and all Senior Notes
issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall bear a
legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SENIOR NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE
AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Certificated Securities or a particular Global Security has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Security
shall be returned to or retained and cancelled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or Certificated Securities, the principal amount of
Senior Notes represented by such Global Security shall be reduced accordingly
and an endorsement shall be made on such Global Security, by the Trustee or by
the Depositary at the direction of the Trustee, to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such increase.
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(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Certificated Securities upon the Company's order or at
the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Security or to a holder of a
Certificated Security for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Note selected for redemption in
whole or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
(iv) All Global Securities and Certificated Securities issued
upon any registration of transfer or exchange of Global Securities or
Certificated Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Certificated Securities
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange Senior Notes during a period beginning
at the opening of business 15 days before the day of any selection of
Senior Notes for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Senior Note so selected for redemption
in whole or in part, except the unredeemed portion of any Senior Note
being redeemed in part or (C) to register the transfer of or to
exchange a Senior Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Senior Note is
registered as the absolute owner of such Senior Note for the purpose
of receiving payment of principal of and interest on such Senior Notes
and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Certificated Securities in accordance with the provisions of Section
2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receives evidence to their satisfaction of the destruction,
loss or theft of any Senior Note, the Company shall issue and the Trustee, upon
the written order of the Company signed by one Officer of the Company, shall
authenticate a replacement Senior Note if the Trustee's requirements are met.
If required by the Trustee or the Company, an indemnity bond must be supplied
by the holder that is sufficient in the judgment of the Trustee and the Company
to protect the Company, the Trustee, any Agent and any authenticating
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agent from any loss that any of them may suffer if a Senior Note is replaced.
The Company may charge for its expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding. Except as set forth in Section 2.09 hereof, a Senior Note does not
cease to be outstanding because the Company or an Affiliate of the Company
holds the Senior Note.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date, money sufficient to pay
all principal and interest, if any, payable on that date with respect to the
Senior Notes (or the portion thereof to be redeemed or maturing, as the case
may be), then on and after that date such Senior Notes (or portions thereof)
shall be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by the Company, or an Affiliate of the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Senior Notes that a Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes upon a
written order of the Company signed by one Officer of the Company. Temporary
Senior Notes shall be substantially in the form of definitive Senior Notes but
may have variations that the Company considers appropriate for temporary Senior
Notes and as shall be reasonably acceptable to the Trustee. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Senior Notes and deliver them in exchange for temporary
Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Senior Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Senior Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall destroy cancelled Senior Notes (subject to the record retention
requirement of the Exchange Act), unless the Company directs cancelled Senior
Notes to be returned to it. Certification of the destruction of all cancelled
Senior Notes shall be delivered to the Company for all certificates so
destroyed. The Company may not issue new Senior Notes to replace Senior Notes
that it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior
to the payment date, in each case at the rate provided in the Senior Notes and
in Section 4.01 hereof. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that the Company shall fix or
cause to be fixed each such special record date as early as practicable prior
to the payment date, and the Company shall mail or cause to be mailed as early
as practicable to each holder a notice that states the special record date, the
related payment date and the amount of defaulted interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of holders of
the Senior Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in TIA Section 316(c).
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Senior Notes may use a "CUSIP" number and,
if it does so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to holders; provided that any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Senior Notes and that reliance may
be placed only on the other identification numbers printed on the Senior Notes.
The Company will promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3.
REDEMPTION AND CERTAIN REPURCHASES
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Senior Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Senior Notes to
be redeemed and (iv) the redemption price.
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SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed at any time,
except as provided in Section 3.09, the Trustee shall select the Senior Notes
to be redeemed or purchased in compliance with the requirements of the
principal national securities exchange, if any, on which the Senior Notes are
listed, or, if the Senior Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any), provided that no Senior Notes with a principal
amount of $1,000 or less shall be redeemed or purchased in part. A new Senior
Note in principal amount equal to the unredeemed or unpurchased portion shall
be issued in the name of the holder thereof upon cancellation of the original
Senior Note. On and after the redemption or purchase date, interest shall cease
to accrue on the Senior Notes or portions of them called for redemption or
purchase. In the event of partial redemption by lot, the particular Senior
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Senior Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Note selected for
partial redemption, the principal amount thereof to be redeemed. Senior Notes
and portions of them selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Senior Notes of a holder are to be
redeemed, the entire outstanding amount of Senior Notes held by such holder,
even if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Senior Notes
called for redemption also apply to portions of Senior Notes called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each holder whose
Senior Notes are to be redeemed at its registered address (provided that in the
event of a redemption pursuant to Section 3.07(b) hereof arising out of a sale
of the Company's Capital Stock (other than Disqualified Stock) to a Strategic
Equity Investor, such notice shall not be mailed prior to the consummation of
such sale).
The notice shall identify the Senior Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of
the principal amount of such Senior Note to be redeemed and that,
after the redemption date upon surrender of such Senior Note, a new
Senior Note or Senior Notes in principal amount equal to the
unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
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(f) that, unless the Company defaults in making such redemption
payment, interest on Senior Notes (or portions thereof) called for
redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Senior Notes and/or section of this
Indenture pursuant to which the Senior Notes called for redemption are
being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days (unless,
except as set forth above, a shorter period is acceptable to the Trustee) prior
to the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Notes called for redemption become due and payable on the
redemption date at the redemption price stated in such notice. A notice of
redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or a Subsidiary is the
Paying Agent, shall segregate and hold in trust) immediately available funds
sufficient to pay the redemption price of and accrued interest, if any, on all
Senior Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any funds deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest, if any, on, all Senior Notes to be
redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Senior Notes or the portions of Senior Notes called for redemption. If a
Senior Note is redeemed on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Senior Note was registered at the
close of business on such record date. If any Senior Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid redemption price, from the redemption date until such redemption
price is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Senior Notes and in Section
4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the holder of the Senior
Notes at the expense of the Company a new Senior Note equal in principal amount
to the unredeemed portion of the Senior Note surrendered.
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SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in Section 3.07(b) below, prior to March 1,
2004, the Senior Notes shall be subject to redemption at any time at the option
of the Company, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the Make-Whole Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date. On or
after March 1, 2004, the Senior Notes shall be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice to the holders, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on March 1 of the
years indicated below:
YEAR PERCENTAGE
---- ----------
2004.................................................................... 104.750%
2005.................................................................... 103.167%
2006.................................................................... 101.583%
2007 and thereafter..................................................... 100.000%
(b) Notwithstanding the provisions of Section 3.07(a) above, in the
event of the sale by the Company prior to March 1, 2002 of its Capital Stock
(other than Disqualified Stock) (i) to a Strategic Investor in a single
transaction or series of related transactions for an aggregate purchase price
equal to or exceeding $50.0 million or (ii) in one or more Public Offerings, up
to a maximum of 25% of the aggregate principal amount of the Senior Notes
originally issued shall, at the option of the Company, be redeemable from the
net cash proceeds of such sale or sales to such Strategic Investor (but only to
the extent such proceeds consist of cash or readily marketable cash equivalents
received in respect of the Capital Stock, other than Disqualified Stock, so
sold) at a redemption price equal to 109.50% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date, provided that: (1) at least 75 % of the aggregate principal
amount of the Senior Notes originally issued remains outstanding immediately
after the occurrence of such redemption; and (2) such redemption occurs within
90 days of the date of the closing of each such sale.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 3.09 and 4.15 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Senior Notes.
SECTION 3.09. OFFER TO PURCHASE WITH EXCESS ASSET SALE PROCEEDS.
If at any time the cumulative amount of Excess Proceeds that have not
been applied in accordance with this Section 3.09 exceeds $10.0 million, the
Company shall, within 30 days thereafter, make an offer to all holders of
Senior Notes and Pari Passu Notes (an "Excess Proceeds Offer"), to purchase the
maximum principal amount and/or accreted value, as applicable, of Senior Notes
and Pari Passu Notes that may be purchased out of such Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the outstanding principal
amount of the Senior Notes and 100% of the outstanding principal amount or
accreted value, as applicable, of the Pari Passu Notes, plus accrued and unpaid
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interest and Liquidated Damages thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures specified below.
The Excess Proceeds Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the maximum accreted value or
principal amount, as the case may be, of Senior Notes and Pari Passu Notes that
may be purchased with such Excess Proceeds (on a pro rata basis if Senior Notes
and Pari Passu Notes tendered is in excess of the Excess Proceeds) (which
maximum principal amount of Senior Notes shall be the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Senior Notes and Pari Passu
Notes tendered in response to the Excess Proceeds Offer, subject to the
provisions of Section 4.10 hereof.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued interest on the Senior
Notes shall be paid to the Person in whose name a Senior Note is registered at
the close of business on such record date, and no additional interest shall be
payable to holders who tender Senior Notes pursuant to the Excess Proceeds
Offer on the portion of the tendered Senior Notes purchased pursuant to the
Excess Proceeds Offer.
Upon the commencement of any Excess Proceeds Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the holders of
the Senior Notes, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such holders to tender Senior
Notes pursuant to the Excess Proceeds Offer. The Excess Proceeds Offer shall be
made to all holders. The notice, which shall govern the terms of the Excess
Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to Sections
3.09 and 4.10 hereof and the length of time the Excess Proceeds Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Note or portion thereof not tendered or accepted
for payment shall continue to accrue interest;
(d) that any Senior Note or portion thereof accepted for payment
pursuant to the Excess Proceeds Offer shall cease to accrue interest after
the Purchase Date;
(e) that holders electing to have a Senior Note or portion thereof
purchased pursuant to any Excess Proceeds Offer shall be required to
surrender the Senior Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Senior Note completed, to the
Company, a depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice at least three Business Days before
the Purchase Date;
(f) that holders shall be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the holder, the
principal amount of the Senior Note or portion thereof the holder
delivered for purchase and a statement that such holder is withdrawing his
election to have the Senior Note or portion thereof purchased;
(g) that, if the aggregate principal amount, and/or the aggregate
accreted value as the case may be, of Senior Notes and Pari Passu Notes
tendered by holders of such notes exceeds the Offer
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Amount, the Trustee shall select the Senior Notes to be purchased on a
pro rata basis as described above (with such adjustments as may be
deemed appropriate by the Trustee so that only Senior Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that holders whose Senior Notes were purchased only in part shall
be issued new Senior Notes equal in principal amount to the unpurchased
portion of the Senior Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis (as described above) to the
extent necessary, the Offer Amount of Senior Notes, Pari Passu Notes or
portions thereof tendered pursuant to the Excess Proceeds Offer, or if less
than the Offer Amount has been tendered, all Senior Notes, Pari Passu Notes or
portions thereof tendered, and deliver to the Trustee an Officers' Certificate
stating that such Senior Notes, Pari Passu Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company or Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering holder an amount equal to the purchase price of the
Senior Note or portion thereof tendered by such holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Senior Note,
and the Trustee shall authenticate and mail or deliver such new Senior Note to
such holder equal in principal amount to any unpurchased portion of the Senior
Note surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Company to the holder thereof. The Company shall publicly
announce the results of the Excess Proceeds Offer on the Purchase Date. In the
event that the aggregate amount of Excess Proceeds exceeds the aggregate
principal amount or accreted value, as the case may be, of Senior Notes, Pari
Passu Notes or portions thereof surrendered by holders of such notes pursuant
to an Excess Proceeds Offer, the Company may use the remaining Excess Proceeds
for general purposes. Upon completion of an Excess Proceeds Offer, the amount
of Excess Proceeds shall be deemed to be reset at zero.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof. No repurchase of Senior Notes under this
Section 3.09 shall be deemed to be a redemption of Senior Notes.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest, on the Senior Notes on the dates and in the manner
provided in the Senior Notes and this Indenture. Principal, premium, if any,
and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company, holds as of the due date money deposited by, or on
behalf of, the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Senior Note Registration Rights
Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to the then applicable interest rate on the Senior Notes to the extent lawful
until such overdue principal is paid; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest
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(without regard to any applicable grace period) at the same rate to the extent
lawful until such overdue installments of interest are paid.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Senior Notes may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Senior Notes
and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03. REPORTS.
(a) So long as any of the Senior Notes remain outstanding, the Company
shall cause copies of all quarterly and annual financial reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the Securities and Exchange Commission (the "Commission") may
by rules and regulations prescribe) which the Company is required to file with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act ("SEC
Reports") to be filed with the Trustee within 15 days of filing with the
Commission. If the Company is not subject to the requirements of Section 13(a)
or 15(d) of the Exchange Act or shall cease to be required by the Commission to
file SEC Reports pursuant to the Exchange Act, the Company shall nevertheless
continue to cause SEC Reports, comparable to those which it would be required
to file pursuant to Section 13(a) or 15(d) of the Exchange Act if it were
subject to the requirements of either such section, to be so filed with the
Commission (unless the Commission will not accept such a filing) and with the
Trustee within the same time periods as would have applied (including under the
preceding sentence) had the Company been subject to the requirements of Section
13(a) or 15(d) of the Exchange Act. Whether or not required by the Exchange Act
to file SEC Reports with the Commission, so long as any Senior Notes are
outstanding, the Company shall furnish copies of the SEC Reports to the holders
of Senior Notes at the time the Company is required to file the same with the
Trustee and make such information available to investors who request it in
writing. In addition, the Company shall, for so long as any Senior Notes remain
outstanding, furnish to the holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144(d)(4) under the Securities Act. The Company shall also
comply with the provisions of TIA Section 314(a).
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(b) The Company shall provide the Trustee with a sufficient number of
copies of all SEC Reports that the Trustee may be required to deliver to the
holders of the Senior Notes under this Section 4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that
(i) a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has (x) kept, observed,
performed and fulfilled, and (y) caused each of its Subsidiaries to keep,
observe, perform and fulfill, its obligations under this Indenture, and (ii) as
to each such Officer signing such certificate, that to the best of his or her
knowledge (A) the Company has kept, observed, performed and fulfilled, and has
caused each of its Subsidiaries to keep, observe, perform and fulfill, each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture to be performed or observed by it (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto) and (B) no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Senior Notes is prohibited or if such event has
occurred, a description of the event and what action each is taking or proposes
to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention which would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 of this Indenture or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default, Event of Default or default and what action the Company is taking or
proposes to take with respect thereto.
(d) The Company shall deliver to the Trustee an Officers' Certificate
as required by, and in accordance with, Section 4.07(f) hereof.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies, except as contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the holders of the Senior Notes.
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SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on
account of any Equity Interests of the Company or any of its
Subsidiaries other than dividends or distributions payable (A) in
Equity Interests of the Company that are not Disqualified Stock or (B)
to the Company or any Subsidiary;
(ii) purchase, redeem, defease, retire or otherwise acquire for
value ("Retire" and correlatively, a "Retirement") any Equity
Interests of the Company or any of its Subsidiaries or other Affiliate
of the Company (other than any such Equity Interests owned by the
Company or any Subsidiary);
(iii) Retire for value any Indebtedness of (A) the Company that
is subordinate in right of payment to the Senior Notes or (B) any
Subsidiary, except, with respect to clause (A) or (B) above, at final
maturity or in accordance with the mandatory redemption or repayment
provisions set forth in the original documentation governing such
Indebtedness; or
(iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at the
time of such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence thereof;
(2) after giving effect to such Restricted Payment on a
pro forma basis as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, the
Company could incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Cash Flow Leverage Ratio test set
forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate
of all other Restricted Payments made by the Company and its
Subsidiaries after the Issue Date (including any Restricted
Payments made pursuant to clauses (i), (v) and (vi) of Section
4.07(b)), is less than the sum of
(w) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period)
from June 30, 1996 to the end of the Company's most
recently ended fiscal quarter for which internal
financial statements are
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available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus
(x) 100% of the aggregate net cash proceeds
received by the Company from the issue or sale of Equity
Interests of the Company or of debt securities or
Disqualified Stock of the Company that have been
converted into such Equity Interests (other than Equity
Interests (or convertible debt securities) sold to a
Subsidiary of the Company and other than Disqualified
Stock or debt securities that have been converted into
Disqualified Stock) after June 30, 1996 (other than any
such Equity Interests, the proceeds of which were used
as set forth in clauses (b)(ii) and (b)(viii) below),
plus
(y) 100% of the sum of, without duplication, (1)
aggregate dividends or distributions received by the
Company or any Subsidiary from any Joint Venture (other
than dividends or distributions to pay any obligations
of such Joint Venture to Persons other than the Company
or any Subsidiary, such as income taxes), with non-cash
distributions to be valued at the lower of book value or
fair market value as determined by the Board of
Directors, (2) the amount of the principal and interest
payments received since the Issue Date by the Company or
any Subsidiary from any Joint Venture and (3) the net
proceeds from the sale of an Investment in a Joint
Venture received by the Company or any Subsidiary;
provided that there is no obligation to return any such
amounts to the Joint Venture, and excluding any such
dividend, distribution, interest payment or net proceeds
that constitutes a return of capital invested pursuant
to clause (b)(vi) of this Section 4.07, plus
(z) $10.0 million.
(b) The foregoing provisions in Section 4.07(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at such date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) the Retirement of (A) any Equity Interests of the Company
or any Subsidiary of the Company, (B) Indebtedness of the Company that
is subordinate to the Senior Notes or (C) Indebtedness of a Subsidiary
of the Company, in exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified
Stock);
(iii) the Retirement of any Indebtedness of the Company
subordinated in right of payment to the Senior Notes in exchange for,
or out of the proceeds of the substantially concurrent incurrence of
Indebtedness of the Company (other than Indebtedness to a Subsidiary
of the Company), but only to the extent that such new Indebtedness is
permitted under Section 4.09 hereof and (1) is subordinated in right
of payment to the Senior Notes at least to the same extent as, (2) has
a Weighted Average Life to Maturity at least as long as, and (3) has
no scheduled principal payments due in any amount earlier than, any
equivalent amount of principal under the Indebtedness so Retired;
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(iv) the Retirement of any Indebtedness of a Subsidiary of the
Company in exchange for, or out of the proceeds of the substantially
concurrent incurrence of Indebtedness of the Company or any Subsidiary
but only to the extent that such incurrence is permitted under Section
4.09 hereof and only to the extent that such Indebtedness (1) is not
secured by any assets of the Company or any Subsidiary to a greater
extent than the Retired Indebtedness was so secured, (2) has a
Weighted Average Life to Maturity at least as long as the Retired
Indebtedness and (3) if such Retired Indebtedness was an obligation of
the Company, is pari passu or subordinated in right of payment to the
Senior Notes at least to the same extent as the Retired Indebtedness;
(v) the Retirement of any Equity Interests of the Company or
any Subsidiary of the Company held by any member of the Company's (or
any of its Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $5.0 million in any
twelve-month period plus the aggregate cash proceeds received by the
Company during such twelve-month period from any reissuance of Equity
Interests by the Company to members of management of the Company and
its Subsidiaries;
(vi) Investments in any Joint Venture; provided that at the
time any such Investment is made, such Investment shall not cause the
aggregate amount of Investments at any one time outstanding under this
clause (vi) to exceed the greater of (x) $25.0 million and (y) 5% of
the Total Common Equity of the Company;
(vii) the payment of cash in lieu of fractional shares (a)
payable as dividends on Equity Interests of the Company or (b)
issuable upon conversion of or in exchange for securities convertible
into or exchangeable for Equity Interests of the Company or (c)
issuable as a result of a corporate reorganization, provided that, in
the case of (a) and (b), the issuance of such Equity Interests or
securities and, in the case of (c), such corporate reorganization, is
permitted under the terms of this Indenture; and
(viii) Investments with the net cash proceeds received by the
Company from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock) after December 31, 1997;
provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (i), (ii), (iii), (iv), (v), (vi)
and (viii), no Default or Event of Default shall have occurred and be
continuing.
(c) A Permitted Investment that ceases to be a Permitted Investment
pursuant to the definition of that term set forth in Section 1.01 hereof, shall
become a Restricted Investment, deemed to have been made on the date that it
ceases to be a Permitted Investment.
(d) The Board of Directors may designate any Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default or an
Event of Default pursuant to Article 6 hereof. For purposes of making such
determination, all outstanding Investments by the Company and its Subsidiaries
(except to the extent repaid in cash) in such Subsidiary so designated shall be
deemed to be Restricted Payments at the time of such designation and shall
reduce the amount available for Restricted Payments under paragraph (a) of this
Section 4.07. All such outstanding Investments will be deemed to constitute
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Investments in an amount equal to the greatest of (x) the net book value of
such Investments at the time of such designation, (y) the fair market value of
such Investments at the time of such designation and (z) the original fair
market value of such Investments at the time they were made. Such designation
will only be permitted if such Restricted Payment would be permitted at such
time.
(e) The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Subsidiary; provided that such designation
shall be deemed to be an incurrence of Indebtedness by a Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if (i) such Indebtedness is permitted
under Section 4.09 hereof and (ii) no Default or Event of Default pursuant to
Article 6 hereof would be in existence following such designation.
(f) Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.07 were computed, which calculations
may be based upon the Company's latest available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause to become effective any
consensual encumbrance or restriction on the ability of any Subsidiary to:
(i) pay dividends or make any other distributions to the Company or
any of its Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any of its Subsidiaries;
(ii) make loans or advances to the Company or any of its
Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any
of its Subsidiaries; except for such encumbrances or restrictions existing
as of the Issue Date or under or by reason of:
(a) Existing Indebtedness;
(b) applicable law;
(c) any instrument governing Acquired Debt as in effect at the time
of acquisition (except to the extent such Indebtedness was incurred in
connection with, or in contemplation of, such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(d) by reason of customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past
practices;
(e) Indebtedness in respect of a Permitted Refinancing, provided that
the restrictions contained in the agreements governing such Refinancing
Indebtedness are not materially more restrictive than those contained in
the agreements governing the Indebtedness being refinanced;
(f) with respect to clause (iii) above, purchase money obligations for
property acquired in the ordinary course of business, Vendor Indebtedness
incurred in connection with the purchase or lease
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of Telecommunications Related Assets or performance bonds or similar
security for performance which liens securing such obligations do not
cover any asset other than the asset acquired or, in the case of
performance bonds or similar security for performance, the assets
associated with the Company's performance;
(g) Indebtedness incurred under Section 4.09(b)(i) hereof;
(h) this Indenture and the Senior Notes or future Indebtedness with
substantially similar restrictions, if any, to the Senior Notes;
(i) the Senior Subordinated Note Indenture and the Senior Subordinated
Notes or future Indebtedness with substantially similar restrictions, if
any, to the Senior Subordinated Notes; or
(j) in the case of clauses (a), (c), (e), (g), (h) and (i) above, any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are not materially more
restrictive with respect to such dividend and other payment restrictions
than those contained in such instruments as in effect on the date of their
incurrence or, if later, the Issue Date.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
(a) The Company and its Subsidiaries shall not, directly or indirectly
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable for the payment of (collectively, "incur" and, correlatively,
"incurred" and "incurrence") any Indebtedness (including, without limitation,
Acquired Debt) or issue any Disqualified Stock; provided, however, that the
Company and/or any of its Subsidiaries may incur Indebtedness (including,
without limitation, Acquired Debt) or issue shares of Disqualified Stock if,
after giving effect to the incurrence of such Indebtedness or the issuance of
such Disqualified Stock, the Consolidated Cash Flow Leverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of such
incurrence or issuance: (x) does not exceed 5.5 to 1 if such incurrence or
issuance occurs on or prior to June 1, 1999; and (y) does not exceed 5.0 to 1
if such incurrence or issuance occurs after June 1, 1999, in each case,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock had been issued, as the case may be, at the beginning of
such four-quarter period. If the Company incurs any Indebtedness or issues or
redeems any Preferred Stock subsequent to the commencement of the period for
which such ratio is being calculated but prior to the event for which the
calculation of the ratio is made, then the ratio will be calculated giving pro
forma effect to any such incurrence of Indebtedness, or such issuance or
redemption of Preferred Stock, as if the same had occurred at the beginning of
the applicable period. In making such calculation on a pro forma basis,
interest attributable to Indebtedness bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period.
(b) The foregoing limitation in Section 4.09(a) shall not apply to
(with each exception to be given independent effect):
(i) the incurrence by the Company and/or any of its
Subsidiaries of Indebtedness under a Credit Facility in an aggregate
principal amount at any one time outstanding (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the
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Company and/or any of its Subsidiaries thereunder) not to exceed
$150.0 million in the aggregate at any one time outstanding, less the
aggregate amount of all Net Proceeds of Asset Sales applied to
permanently reduce the commitments with respect to such Indebtedness
pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and/or any of its
Subsidiaries of Vendor Indebtedness, provided that the aggregate
amount of such Vendor Indebtedness incurred does not exceed 80% of the
total cost of the Telecommunications Related Assets financed therewith
(or 100% of the total cost of the Telecommunications Related Assets
financed therewith if such Vendor Indebtedness was extended for the
purchase of tangible physical assets and was so financed by the vendor
thereof or an affiliate of such vendor);
(iii) the incurrence by the Company and/or any of its
Subsidiaries of the Existing Indebtedness, including the Existing
Senior Notes;
(iv) the incurrence by the Company and/or any of its
Subsidiaries of Indebtedness in an aggregate amount not to exceed
$50.0 million at any one time outstanding;
(v) the incurrence by the Company of Indebtedness, but only to
the extent that such Indebtedness has a final maturity no earlier
than, and a Weighted Average Life to Maturity equal to or greater
than, the final maturity and Weighted Average Life to Maturity,
respectively, of the Senior Notes, in an aggregate principal amount
not to exceed 2.0 times the net cash proceeds received by the Company
after June 30, 1996 from the issuance and sale of Equity Interests of
the Company (that are not Disqualified Stock) plus the fair market
value of Equity Interests (other than Disqualified Stock) issued after
June 30, 1996 in connection with any acquisition of any
Telecommunications Business;
(vi) the incurrence (a "Permitted Refinancing") by the Company
and/or any of its Subsidiaries of Indebtedness issued in exchange for,
or the proceeds of which are used to refinance, replace, refund or
defease ("Refinance" and correlatively, "Refinanced" and
"Refinancing") Indebtedness, other than Indebtedness incurred pursuant
to clause (i) above, but only to the extent that:
(1) the net proceeds of such Refinancing
Indebtedness do not exceed the principal amount of and
premium, if any, and accrued interest on the
Indebtedness so Refinanced (or if such Indebtedness was
issued at an original issue discount, the original issue
price plus amortization of the original issue discount
at the time of the repayment of such Indebtedness) plus
the fees, expenses and costs of such Refinancing and
reasonable prepayment premiums, if any, in connection
therewith;
(2) the Refinancing Indebtedness shall have a
final maturity no earlier than, and a Weighted Average
Life to Maturity equal to or greater than, the final
maturity and Weighted Average Life to Maturity of the
Indebtedness being Refinanced; and
(3) if the Indebtedness being Refinanced is
subordinated in right of payment to the Senior Notes,
the Refinancing Indebtedness shall be subordinated in
right of payment to the Senior Notes on terms at least
as favorable to the holders of Senior Notes as those
contained in the documentation governing the
Indebtedness being so Refinanced;
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(vii) the incurrence by the Company or any of its Subsidiaries
of intercompany Indebtedness between or among the Company and any of
its Subsidiaries;
(viii) the incurrence by the Company or any of its Subsidiaries
of Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate or foreign currency risk with respect to any
floating rate Indebtedness that is permitted by the terms of this
Indenture to be outstanding; and
(ix) the incurrence by the Company of Indebtedness represented
by the Senior Notes and the Senior Subordinated Notes, in each case,
issued on the Issue Date.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness or Disqualified Stock meets the criteria of
more than one of the categories described in clauses (i) through (ix) above or
is entitled to be incurred pursuant to Section 4.09(a), the Company shall, in
its sole discretion, classify such item in any manner that complies with this
Section and such item shall be treated as having been incurred pursuant to only
one of such clauses or pursuant to Section 4.09(a). Accrual of interest or
dividends, the accretion of accreted value or liquidation preference and the
payment of interest or dividends in the form of additional Indebtedness, Common
Stock or Preferred Stock shall not be deemed to be an incurrence of
Indebtedness for purposes of this Section.
SECTION 4.10. ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, whether in a single transaction or a series of related
transactions occurring within any twelve-month period,
(i) sell, lease, convey, dispose or otherwise transfer any
assets (including by way of a Sale and Leaseback Transaction) other
than sales, leases, conveyances, dispositions or other transfers (A)
in the ordinary course of business, (B) to the Company by any
Subsidiary of the Company or from the Company to any Subsidiary of the
Company, (C) that constitute a Restricted Payment, Investment or
dividend or distribution permitted under Section 4.07 hereof or (D)
that constitute the disposition of all or substantially all of the
assets of the Company pursuant to Section 5.01 hereof or
(ii) issue or sell Equity Interests in any of its Subsidiaries
(other than an issuance or sale of Equity Interests of any such
Subsidiary to the Company or a Subsidiary of the Company),
if, in the case of either (i) or (ii) above, in a single transaction or a
series of related transactions occurring within any twelve-month period, such
assets or securities:
(x) have a Fair Market Value in excess of $2.0 million; or
(y) are sold or otherwise disposed of for net proceeds in excess of
$2.0 million (each of the foregoing, an "Asset Sale"), unless:
(a) no Default or Event of Default exists or would occur as a
result thereof;
(b) the Company, or such Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal
to the Fair Market Value (evidenced by a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate
delivered to the Trustee), of the assets or securities issued or sold
or otherwise disposed of; and
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(c) except with respect to an Asset Sale constituting the
issuance or sale of Equity Interests in the Web Hosting Subsidiary, at
least 75% of the consideration therefor received by the Company or
such Subsidiary is in the form of cash, provided, however, that (A)
the amount of (x) any liabilities (as shown on the Company's or such
Subsidiary's most recent balance sheet or in the notes thereto), of
the Company or any Subsidiary of the Company (other than liabilities
that are by their terms subordinated to the Senior Notes) that are
assumed by the transferee of any such assets and (y) any notes,
obligations or other securities received by the Company or any such
Subsidiary from such transferee that are immediately converted by the
Company or such Subsidiary into cash, shall be deemed to be cash (to
the extent of the cash received in the case of subclause (y)) for
purposes of this clause (c); and (B) an amount equal to the Fair
Market Value (determined as set forth in clause (b) above) of (1)
Telecommunications Related Assets received by the Company or any such
Subsidiary from the transferee that will be used by the Company or any
such Subsidiary in the operation of a Telecommunications Business in
the United States and (2) the Voting Stock of any Person engaged in
the Telecommunications Business in the United States received by the
Company or any such Subsidiary (provided that such Voting Stock is
converted to cash within 270 days or such Person concurrently becomes
or is a Subsidiary of the Company) shall be deemed to be cash for
purposes of this clause (c).
The foregoing provisions shall not apply to a sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company,
which shall be governed by Article 5 hereof.
(b) Within 360 days after the receipt of net proceeds of any Asset
Sale, the Company (or such Subsidiary, as the case may be) may apply the Net
Proceeds from such Asset Sale, at its option, to: (i) permanently reduce the
amounts permitted to be borrowed by the Company under the terms of any of its
Senior Indebtedness; or (ii) the purchase of Telecommunications Related Assets
or Voting Stock of any Person engaged in the Telecommunications Business in the
United States (provided that such Person concurrently becomes a Subsidiary of
the Company); or (iii) in the case of net cash proceeds realized upon the
issuance or sale of Equity Interests in the Web Hosting Subsidiary, fund cash
operating losses, provide working capital and for general corporate purposes.
Any Net Proceeds from any Asset Sales that are not so applied or invested as
provided in the preceding sentence, shall constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
shall be required to make an Excess Proceeds Offer in accordance with the terms
of Section 3.09 hereof.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of their respective
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless: (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person; (ii) such Affiliate Transaction is
approved by a majority of the disinterested directors on the Board of Directors
of the Company; and (iii) the Company delivers to the Trustee, with respect to
any Affiliate Transaction involving aggregate payments in excess of $1.0
million, a resolution of a committee of independent directors of the Company
set forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clauses (i) and (ii) above; provided that: (a)
transactions pursuant to any employment, stock option or stock purchase
agreement entered into by the Company or any of its Subsidiaries, or any grant
of stock, in the ordinary course of business that are approved by the Board of
Directors of the Company; (b) transactions between or among the Company and its
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Subsidiaries; (c) transactions permitted by Section 4.07 hereof; and (d) loans
and advances to employees and officers of the Company or any of its
Subsidiaries in the ordinary course of business in an aggregate principal
amount not to exceed $1.0 million at any one time outstanding, shall not be
deemed Affiliate Transactions.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income therefrom, except for
Permitted Liens.
SECTION 4.13. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into, assume, Guarantee or otherwise become
liable with respect to any Sale and Leaseback Transaction, provided that the
Company or any Subsidiary of the Company may enter into any such transaction
if: (i) the Company or such Subsidiary would be permitted under Sections 4.09
and 4.12 hereof to incur secured Indebtedness in an amount equal to the
Attributable Debt with respect to such transaction; (ii) the consideration
received by the Company or such Subsidiary from such transaction is at least
equal to the Fair Market Value of the property being transferred; and (iii) the
Net Proceeds received by the Company or such Subsidiary from such transaction
are applied in accordance with Section 4.10 hereof.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
existence as a corporation, and the corporate, partnership or other existence
of any Subsidiary, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the holders of the Senior Notes.
SECTION 4.15. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (the "Change of Control Offer") to each holder of Senior Notes to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such holder's Senior Notes at a purchase price equal to 101 % of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, to the date of purchase (the "Change of Control
Payment"), provided that if the date of purchase is on or after an interest
record date and on or before the related interest payment date, any accrued
interest shall be paid to the Person in whose name a Senior Note is registered
at the close of business on such record date, and no additional interest shall
be paid or payable to holders who tender Senior Notes pursuant to the Change of
Control Offer. Within thirty (30) days following any Change of Control, the
Company shall mail a notice to the Trustee and each holder stating: (1) that
the Change of Control Offer
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is being made pursuant to this Section 4.15 and that all Senior Notes or
portions thereof tendered will be accepted for payment; (2) the purchase price
and the purchase date, which shall be no earlier than 30 days nor later than 40
days (unless required by applicable law) from the date such notice is mailed
(the "Change of Control Payment Date"); (3) that any Senior Note or portion
thereof not tendered will continue to accrue interest in accordance with its
terms; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Senior Notes or portions thereof accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date; (5) that holders electing to have any
Senior Notes or portions thereof purchased pursuant to a Change of Control
Offer will be required to surrender the Senior Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Senior Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the holder, the
principal amount of Senior Notes or portions thereof delivered for purchase,
and a statement that such holder is withdrawing his election to have such
Senior Notes or portions thereof purchased; and (7) that holders whose Senior
Notes are being purchased only in part will be issued new Senior Notes equal in
principal amount to the unpurchased portion of the Senior Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof. The Company shall comply with the requirements of
Rule 14e- 1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Senior Notes or portions thereof in
connection with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Senior Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Senior Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Senior Notes so accepted together with an Officers' Certificate
stating the Senior Notes or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each holder of Senior Notes so accepted
payment in an amount equal to the purchase price for such Senior Notes or
portions thereof, and the Trustee shall promptly authenticate and mail to each
holder a new Senior Note equal in principal amount to any unpurchased portion
of the Senior Notes surrendered, if any; provided, that each such new Senior
Note shall be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
SECTION 4.16. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, engage in any business other than the
Telecommunications Business.
SECTION 4.17. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any of its Affiliates to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of any Senior Notes for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Senior Notes unless such consideration is
offered to be paid or agreed
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to be paid to all holders of the Senior 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 4.18. USE OF PROCEEDS.
The Company shall use the gross proceeds from the sale of the Senior
Notes only for the following purposes:
(i) to pay the fees and expenses of the issuance of the Senior Notes
including any discount or commission to the Initial Purchasers of the Senior
Notes; and
(ii) with respect to any funds remaining after application under
clause (i) above, to fund up to 80% of the cost of the acquisition or
construction of Telecommunications Related Assets, or to the repayment of the
Existing Senior Notes or to pay regularly scheduled interest on the Senior
Notes pursuant to their terms.
Pending application of the proceeds in accordance with clause (ii)
above, the Company shall deposit such proceeds into a segregated account in the
Company's name. The Company shall deliver to the Trustee an Officer's
Certificate with each annual compliance certificate certifying that the amounts
in such account were applied in accordance with this Section 4.18.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving entity), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another corporation, Person or
entity unless:
(i) the Company is the surviving entity or the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition has been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition has been made assumes all the obligations of the Company
under the Senior Notes and this Indenture pursuant to a supplemental
indenture in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists;
(iv) except in connection with a Merger with or into a wholly-owned
Subsidiary of the Company, the Company, or any entity or Person formed by
or surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition has been
made, at the time of such transaction after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the
applicable fiscal quarter (including any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of
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transactions), either (A) could incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Cash Flow Leverage Ratio
test described under Section 4.09 hereof or (B) would have (x) Total
Market Capitalization of at least $1.0 billion and (y) total
Indebtedness (net of cash and cash equivalents that are not restricted
cash or restricted cash equivalents as reflected on the Company's
consolidated balance sheet as at the time of such event) in an amount
no greater than 40% of its Total Market Capitalization; and
(v) such transaction would not result in the loss, material
impairment or adverse modification or amendment of any authorization or
license of the Company or its Subsidiaries that would have a material
adverse effect on the business or operations of the Company and its
Subsidiaries taken as a whole.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, 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, lease, conveyance or other disposition, the provisions of this Indenture
referring to the Company shall refer instead to the successor corporation and
not to the Company), 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; provided, however, that the predecessor Company
shall not be relieved from the obligations to pay the principal of, premium, if
any, and interest on the Senior Notes, except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(a) default for 30 days in the payment when due of interest or
Liquidated Damages, if any, on the Senior Notes;
(b) default in payment when due of principal or premium, if any, on
the Senior Notes at maturity, upon redemption or otherwise;
(c) failure by the Company to perform or comply with the provisions
of Sections 4.07, 4.09, 4.10, 4.15 or 5.01 hereof;
(d) failure by the Company for 30 days after notice from the
Trustee or the holders of at least 25% in principal amount of
the Senior Notes then outstanding to comply with its other
agreements in this Indenture or the Senior Notes;
(e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or
any of its Subsidiaries (or the payment of which is guaranteed
by the
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Company or any of its Subsidiaries), whether such Indebtedness
or Guarantee now exists, or is created after the Issue Date,
which default (x) is caused by a failure to pay when due
principal, premium, if any, or interest on such Indebtedness
within the grace period provided in such Indebtedness (a
"Payment Default"), and the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness of the Company or any Significant Subsidiary
under which there has been a Payment Default or the maturity of
which has been accelerated as provided in clause (y), aggregates
$5.0 million or more or (y) results in the acceleration (which
acceleration has not been rescinded) of such Indebtedness prior
to its express maturity and the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$5.0 million or more;
(f) failure by the Company or any of its Significant Subsidiaries
to pay final judgments (other than any judgment as to which a
reputable insurance company has accepted full liability in
writing) aggregating in excess of $5.0 million which judgments
are not paid, discharged or stayed within 45 days after their
entry; and
(g) the Company or any of its Significant Subsidiaries pursuant to
or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing that it is generally not paying
its debts (other than debts which are the subject of a bona
fide dispute) as they become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that;
(A) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(B) appoints a Bankruptcy Custodian of the Company or
any of its Significant Subsidiaries or for all or substantially
all of the property of the Company or any of its Significant
Subsidiaries; or
(C) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such order
or decree is appealed and dismissed on appeal or otherwise has ceased
to be in effect, then the Event of Default hereunder by reason of the
entry of such order or decree shall be deemed to have been cured and
the related acceleration, provided that no other Event of Default has
occurred and is continuing, shall be deemed rescinded.
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The term "Bankruptcy Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing under this Indenture,
the Trustee or the holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable
immediately. Upon such declaration, the principal of, premium, if any, and
accrued and unpaid interest and Liquidated Damages, if any, on the Senior Notes
shall be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising under Sections 6.01(g) or (h) hereof with
respect to the Company or any of its Significant Subsidiaries, the foregoing
amount shall ipso facto become due and payable without further action or
notice. No premium is payable upon acceleration of the Senior Notes except that
in the case of an Event of Default that is the result of an action or inaction
by the Company or any of its Subsidiaries intended to avoid restrictions on or
premiums related to redemptions of the Senior Notes contained in this Indenture
or the Senior Notes, the amount declared due and payable shall include the
premium that would have been applicable on a voluntary prepayment of the Senior
Notes. Holders of the Senior Notes may not enforce this Indenture or the Senior
Notes except as provided herein.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Senior Notes pursuant
to Section 3.07 hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, interest and Liquidated Damages, if any, on the Senior Notes or to enforce
the performance of any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any holder of a Senior Note 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 6.04. WAIVER OF PAST DEFAULTS.
Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding, by notice to the Trustee, may on behalf of the holders
of all of the Senior Notes, waive any existing Default or Event of Default and
its consequences, except a continuing Default or Event of Default in the
payment of interest or Liquidated Damages or premium on, or the principal of,
the Senior Notes. 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.
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SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with the law or this Indenture that the Trustee, in its sole
discretion, determines may be unduly prejudicial to the rights of other holders
of Senior Notes or that may involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
No holder of any Senior Note shall have any right to institute any
proceeding with respect to this Indenture or the Senior Notes or for any remedy
thereunder, unless:
(i) the holder of a Senior Note gives to the Trustee written notice
of a continuing Event of Default;
(ii) the holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Trustee to pursue
the remedy;
(iii) such holder of a Senior Note or holders of the Senior Notes
offer and, if requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense; and
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity.
Otherwise, no holder of any Senior Note shall have any right to
institute any proceeding with respect to this Indenture or the Senior Notes or
for any remedy thereunder, except:
(x) a holder of a Senior Note may institute suit for enforcement of
payment of the principal of and premium, if any, or interest on such Senior
Note on or after the respective due dates expressed in such Senior Note
(including upon acceleration thereof) or
(y) the institution of any proceeding with respect to this Indenture
or the Senior Notes or any remedy thereunder, including without limitation
acceleration, by the holders of a majority in principal amount of the
outstanding Senior Notes; provided that, upon institution of any proceeding or
exercise of any remedy such holders provide the Trustee with prompt written
notice thereof.
A holder of a Senior Note may not use this Indenture to prejudice the
rights of another holder of a Senior Note or to obtain a preference or priority
over another holder of a Senior Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any holder of a Senior Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Senior Note, on or after the
respective due dates expressed in the Senior 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 of the Senior Note.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(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 for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Senior Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be 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 of the Senior Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Senior Notes), the
Company's creditors or the Company's 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 of a Senior Note 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 of the Senior
Notes, 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 7.07 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 7.07 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 of the
Senior Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any holder of a Senior Note any
plan of reorganization, arrangement, adjustment or composition affecting the
Senior Notes or the rights of any holder of a Senior Note thereof, or to
authorize the Trustee to vote in respect of the claim of any holder of a Senior
Note in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: (i) first to holders of Senior Notes, for amounts due and
unpaid on such Senior Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Senior
Notes for interest, and (ii) second, to the extent any other monies are
available, to holders of all Senior Notes for amounts due and unpaid on all
such Senior Notes for principal and premium and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Senior Notes for principal and premium and Liquidated
Damages, if any; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any such
payment to holders of Senior Notes.
SECTION 6.11. 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, 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 6.11 does not apply to a suit by the Trustee, a suit by a holder
of a Senior Note pursuant to Section 6.07 hereof, or a suit by holders of more
than 10% in principal amount of the then outstanding Senior Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and shall use the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee, and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any holders of Senior Notes, unless such holder shall have provided
to the Trustee security and indemnity satisfactory to the Trustee against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the holders unless such holders shall have provided to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest, it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Senior Notes, it shall
not be accountable for the Company's use of the proceeds from the Senior Notes
or any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Senior Notes or any other document in connection with the sale
of the Senior Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to
holders of Senior Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Senior Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the holders of the Senior Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES.
Within 60 days after each May 15th beginning with the May 15th
following the date of this Indenture, the Trustee shall mail to the holders of
the Senior Notes a brief report dated as of such reporting date that complies
with TIA Section 313(a) (but if no event described in TIA Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to the holders of
Senior Notes shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Senior Notes are listed. The Company shall
promptly notify the Trustee if the Senior Notes are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except any
such loss, liability or expense as may be attributable to the negligence or bad
faith of the Trustee. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee, in its sole discretion, may elect to have separate counsel selected by
it and the
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Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal,
premium, if any, interest and Liquidated Damages, if any, on particular Senior
Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The holders of a majority
in principal amount of the then outstanding Senior Notes may remove the Trustee
by so notifying the Trustee and the Company in writing. The Company may remove
the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Bankruptcy Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the holders of a majority in principal amount of the then outstanding Senior
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the holders of Senior Notes of at least 10% in principal amount of the then
outstanding Senior Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee after written request by any holder of a Senior Note
who has been a holder of a Senior Note for at least six months fails to comply
with Section 7.10 hereof, such holder of a Senior Note may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to holders of the Senior Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY, DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
federal or state authority and shall have a combined capital and surplus of at
least $25.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate and at any time, with
respect to the Senior Notes, elect to have either Section 8.02 or 8.03 hereof
be applied to all outstanding Senior Notes upon compliance with the conditions
set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Senior Notes on
the date the conditions set forth in Section 8.04 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 Indebtedness
represented by the outstanding Senior Notes,
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which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other sections of this Indenture referred to in (a)
and (b) below, and to have satisfied all of its other obligations under such
Senior 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 which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of holders of outstanding Senior Notes
to receive from the trust described below payments in respect of the principal
of, premium, if any, and interest on and Liquidated Damages with respect to
such Senior Notes when such payments are due, or on the redemption date, as the
case may be; (b) the Company's obligations with respect to the Senior Notes
concerning issuing temporary Senior Notes, registration of Senior Notes,
mutilated, destroyed, lost or stolen Senior Notes and the maintenance of an
office or agency for payment and money for security payments held in trust; (c)
the rights, powers, trust, duties and immunities of the Trustee, and the
Company's obligations in connection therewith; and (d) the Legal Defeasance
provisions of this Indenture.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall be released from its
obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and
Article 5 hereof with respect to the outstanding Senior Notes on and after the
date the conditions set forth in Section 8.04 are satisfied (hereinafter,
"Covenant Defeasance"), and the Senior 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 (it being understood that such Senior Notes shall not be deemed
outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Senior 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 omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof but,
except as specified above, the remainder of this Indenture and such Senior
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(f) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or Section 8.03 hereof to the outstanding Senior Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 8 applicable to it), in trust, for purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Senior Notes, (i) cash in
U.S. dollars, (ii) non-callable Government Securities, or (iii) a
combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants selected
by the Company, to pay the principal of, premium and Liquidated Damages,
if any, and interest on the outstanding Senior Notes, on the stated
maturity or on the applicable optional redemption date, as the case may
be, of such principal or installment of
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principal of, premium, if any, or interest on or Liquidated Damages
with respect to the outstanding Senior Notes;
(b) In the case of Legal Defeasance, the Company shall have delivered
to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the holders of
the outstanding Senior Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) In the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the holders of the
outstanding Senior Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(e) Such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) The Company shall have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day (or such other applicable
date) following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of Senior Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(h) 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 the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section
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8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Senior Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Senior 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
Senior Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money and Government Securities
(including any proceeds thereof) 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 cash or Government
Securities deposited pursuant to Section 8.04 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 Senior
Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or Government Securities held by it as provided in
Section 8.04 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
8.04(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 8.06. 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, or
interest on any Senior Note and remaining unclaimed for two years after such
principal, and 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 Senior Note shall
thereafter, as a 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 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
Dollars or Government Securities in accordance with Section 8.02 or 8.03
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 Senior
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 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
Senior Note following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the holders of such Senior Notes to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES.
Notwithstanding Section 9.02 hereof, the Company and the Trustee may
amend or supplement this Indenture or the Senior Notes without the consent of
any holder of Senior Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or in
place of certificated Senior Notes;
(c) to provide for the assumption of the Company's obligations to
holders of the Senior Notes in the case of a merger or
consolidation;
(d) to make any change that would provide any additional rights or
benefits to the holders of the Senior Notes or that does not
adversely affect the legal rights under this Indenture of any
such holder; or
(e) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust
Indenture Act.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company in
the execution of any amended or supplemental 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 amended or supplemental Indenture which affects
its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SENIOR NOTES.
The Company and the Trustee may amend or supplement this Indenture or
the Senior Notes or any amended or supplemental Indenture with the written
consent of the holders of Senior Notes of at least a majority in aggregate
principal amount of the Senior Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Senior
Notes), and any existing Default and its consequences or compliance with any
provision of this Indenture or the Senior Notes may be waived with the consent
of the holders of a majority in principal amount of the then outstanding Senior
Notes (including consents obtained in connection with a tender offer or
exchange offer for the Senior Notes).
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the holders of Senior Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental Indenture unless such amended or 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 amended or supplemental Indenture.
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It shall not be necessary for the consent of the holders of Senior
Notes under this Section 9.02 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 9.02
becomes effective, the Company shall mail to the holders of Senior Notes
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
amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07
hereof, the holders of a majority in aggregate principal amount of the Senior
Notes then outstanding may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Senior Notes. However,
without the consent of each holder affected, an amendment or waiver may not
(with respect to any Senior Notes held by a non-consenting holder of Senior
Notes):
(i) reduce the principal amount of Senior Notes whose holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Senior Note or alter the provisions with respect to the
redemption of the Senior Notes (other than Sections 3.09 and
4.15 hereof);
(iii) reduce the rate of or change the time for payment of interest
on any Senior Notes;
(iv) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Senior Notes (except
a rescission of acceleration of the Senior Notes by the holders
of at least a majority in aggregate principal amount of the
Senior Notes and a waiver of the payment default that resulted
from such acceleration);
(v) make any Senior Note payable in money other than that stated in
the Senior Notes;
(vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of holders of Senior
Notes to receive payments of principal of, premium, if any, or
interest on the Senior Notes;
(vii) waive a redemption payment with respect to any Senior Note
(other than a payment required by Sections 3.09 or 4.15
hereof); or
(viii) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Senior Notes
shall be set forth in a amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a holder of a Senior Note is a continuing consent by the holder of a
Senior Note and every subsequent holder of a Senior Note or portion of a Senior
Note that evidences the same debt as the consenting holder's Senior Note, even
if notation of the consent is not made on any Senior Note. However, any such
holder of a
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Senior Note or subsequent holder of a Senior Note may revoke the
consent as to its Senior Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every holder of a Senior Note.
The Company may fix a record date for determining which holders of the
Senior Notes must consent to such amendment, supplement or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of holders of Senior Notes furnished to the Trustee prior to such
solicitation pursuant to Section 2.05 hereof or (ii) such other date as the
Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Senior Note thereafter authenticated. The Company
in exchange for all Senior Notes may issue and the Trustee shall authenticate
new Senior Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture meeting
the requirements of this Article 9, provided that, in the judgment of the
Trustee, the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee or the holders of Senior
Notes. The Company may not sign an amendment or supplemental Indenture until
the Board of Directors approves it.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
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If to the Company:
Intermedia Telecommunications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
If to the Trustee:
SunTrust Bank, Central Florida, National Association
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
The Company or the Trustee, by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to holders of
Senior Notes) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a holder of a Senior Note shall be
mailed by first class mail to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a holder of a Senior Note or any defect in it
shall not affect its sufficiency with respect to other holders of Senior Notes.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to holders of Senior
Notes, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF SENIOR NOTES WITH OTHER HOLDERS OF
SENIOR NOTES.
Holders of the Senior Notes may communicate pursuant to TIA Section
312(b) with other holders of Senior Notes with respect to their rights under
this Indenture or the Senior Notes. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 3 12(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
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(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 3 14(a)(4)) 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
holders of Senior Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Senior Notes or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each holder of the
Senior Notes by accepting a Senior Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Senior
Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
SECTION 10.08. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Indenture and the Senior Notes.
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SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Senior Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Senior Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of February 24, 1999 INTERMEDIA COMMUNICATIONS INC.
By:
--------------------------
Name:
Title:
Attest:
--------------------------------------
Name:
Title:
Dated as of February 24, 1999 SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
Trustee
By:
----------------------------
Name:
Title:
Attest:
---------------------------------------
Name:
Title:
76
EXHIBIT A
(Face of Note)
9 1/2% Senior Note due 2009
No. $__________
CUSIP No.
INTERMEDIA COMMUNICATIONS INC.
promises to pay to Cede & Co.
or its registered assigns,
the principal sum of $_____________
on March 1, 2009.
Interest Payment Dates: March 1 and September 1, commencing September 1, 1999.
Record Dates: February 15 and August 15 (whether or not a Business Day).
Dated: February 24, 1999 INTERMEDIA COMMUNICATIONS INC.
By:
---------------------------
Title:
Trustee's Certification of Authentication
Dated: February 24, 1999
This is one of the Senior Notes referred to in the within-mentioned Indenture:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
(Authorized Signatory)
Additional provisions of this Senior Note are set forth on the other
side of this Senior Note.
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Back of Note
9 1/2% Senior Note due 2009
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SENIOR NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY OR
ANY INTEREST OR PARTICIPATION HEREIN MAY NOT BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES (A) TO OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (5) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) OR (6) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (5)
OR (6), BASED ON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. Intermedia Communications Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Senior Note at the rate and in the manner specified below. Interest will accrue
at a rate of 9 1/2% and will be payable semi-annually, in arrears, on
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March 1 and September 1 of each year, commencing on September 1, 1999 or if any
such day is not a Business Day on the next succeeding Business Day (each an
"Interest Payment Date") to holders of record of the Senior Notes at the close
of business on the immediately preceding February 15 and August 15, whether or
not a Business Day. Interest on the Senior Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. To the extent lawful, the Company shall pay
interest on overdue principal at the then applicable interest rate on the Senior
Notes; it shall pay interest on overdue installments of interest (without regard
to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the Senior
Notes (except defaulted interest) to the Persons who are registered holders of
Senior Notes at the close of business on the record date next preceding the
Interest Payment Date, even if such Senior Notes are cancelled after such
record date and on or before such Interest Payment Date. The holder hereof must
surrender this Senior Note to a Paying Agent to collect principal payments.
Principal, premium, Liquidated Damages, if any, and interest on the Senior
Notes will be payable by wire transfer of immediately available funds to the
accounts specified by the holders thereof or if no such account(s) is
specified, by mailing a check to the address set forth for such holder in the
register of the holders of Senior Notes. Unless otherwise designated by the
Company, the Company's office or agency in New York will be the office of the
Trustee maintained for such purpose.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without prior notice to any holder of a Senior Note. The
Company may act in any such capacity.
4. Indenture. The Company issued the Senior Notes under a Senior Note
Indenture, dated as of February 24, 1999 (the "Indenture"), between the Company
and the Trustee. The terms of the Senior Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in
effect on the date of the Indenture. The Senior Notes are subject to all such
terms, and holders of Senior Notes are referred to the Indenture and such act
for a statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Senior Notes. The Senior Notes
are obligations of the Company limited to the sum of $300,000,000 in aggregate
principal amount of Senior Notes.
5. Optional Redemption. Prior to March 1, 2004, the Senior Notes shall
be subject to redemption at any time at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the Make-Whole
Price, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date. On or after March 1, 2004, the Senior Notes
shall be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice to the holders
thereof, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on March 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2004.................................................................... 104.750%
2005.................................................................... 103.167%
2006.................................................................... 101.583%
2007.................................................................... 100.000%
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Notwithstanding the provisions of Section 3.07(a) of the Indenture, in
the event of the sale by the Company prior to March 1, 2002 of its Capital
Stock (other than Disqualified Stock) (i) to a Strategic Investor in a single
transaction or series of related transactions for an aggregate purchase price
equal to or exceeding $50.0 million or (ii) in one or more Public Offerings, up
to a maximum of 25% of the aggregate principal amount of the Senior Notes
originally issued shall, at the option of the Company, be redeemable from the
net cash proceeds of such sale or sales to such Strategic Investor (but only to
the extent such proceeds consist of cash or readily marketable cash equivalents
received in respect of the Capital Stock, other than Disqualified Stock, so
sold) at a redemption price equal to 109.50% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date; provided that (i) at least 75% of the aggregate principal
amount of the Senior Notes originally issued remains outstanding immediately
after the occurrence of such redemption; and (ii) such redemption occurs within
90 days of the date of the closing of each such sale.
6. Mandatory Redemption. Except as set forth in Sections 3.09 and 4.15
of the Indenture, the Company will not be required to make mandatory redemption
or sinking fund payments with respect to the Senior Notes.
7. Repurchase at Option of holder. (a) Upon the occurrence of a Change
of Control, the Company shall be required to make an offer to repurchase on the
Change of Control Payment Date all or any part (equal to $1,000 or an integral
multiple thereof) of the outstanding Senior Notes at a purchase price equal to
101 % of the aggregate principal amount thereof plus accrued and unpaid
interest, and Liquidated Damages, if any thereon to the Change of Control
Payment Date. Holders of Senior Notes that are subject to an offer to purchase
will receive a Change of Control Offer from the Company prior to any related
Change of Control Payment Date and may elect to have such Senior Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
(b) The Company shall be required when the cumulative amount of Excess
Proceeds from Asset Sales exceeds $10.0 million to offer to purchase the
maximum principal amount and/or accreted value, as applicable, of Senior Notes
and Pari Passu Notes that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the outstanding principal
amount of the Senior Notes and 100% of the accreted value or 100% of the
outstanding principal amount, as applicable, of the Pari Passu Notes, plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
fixed for the closing of such accordance with the procedures set forth in
Section 3.09 of the Indenture. If the principal amount and/or aggregate
accreted value, as the case may be, of Senior Notes and Pari Passu Notes
surrendered by holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Senior Notes and Pari Passu Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Senior Notes and Pari Passu Notes in denominations of
$1,000, or integral multiples thereof shall be purchased). Holders of Senior
Notes that are the subject of an offer to purchase will receive an Excess
Proceeds Offer from the Company prior to any related purchase date and may
elect to have such Senior Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
8. Notice of Redemption. Notice of redemption shall be mailed by first
class mail at least 30 days but not more than 60 days before the redemption
date to each holder of Senior Notes to be redeemed at its registered address.
Senior Notes may be redeemed in part but only in whole multiples of $1,000,
unless all of the Senior Notes held by a holder of Senior Notes are to be
redeemed. If any Senior Note is to be redeemed in part only, the notice of
redemption that relates to such Senior Note shall state the portion of the
principal amount to be redeemed. On and after the redemption date, interest
ceases to accrue on Senior Notes or portions of them called for redemption.
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9. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a holder of a Senior Note, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
holder of a Senior Note to pay any taxes and fees required by law or permitted
by the Indenture. Neither the Company nor the Registrar need exchange or
register the transfer of any Senior Note or portion of a Senior Note selected
for redemption. Also, neither the Company nor the Registrar need exchange or
register the transfer of any Senior Notes for a period of 15 days before a
selection of Senior Notes to be redeemed.
10. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Senior Note, the Trustee, any Agent and
the Company shall deem and treat the Person in whose name this Senior Note is
registered as its absolute owner for the purpose of receiving payment of
principal of, premium, Liquidated Damages, if any, and interest on this Senior
Note and for all other purposes whatsoever, whether or not this Senior Note is
overdue, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary. The registered holder of a Senior Note shall be
treated as its owner for all purposes.
11. Amendments, Supplement and Waivers. Subject to certain exceptions,
the Indenture or the Senior Notes may be amended or supplemented with the
consent of the holders of at least a majority in principal amount of the Senior
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for Senior Notes), and any existing default or
compliance with any provision of the Indenture or the Senior Notes may be
waived with the consent of the holders of a majority in principal amount of the
then outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for Senior Notes). Without the consent of any
holder of a Senior Note, the Indenture or the Senior Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency; to provide for
uncertificated Senior Notes in addition to or in place of certificated Senior
Notes; to provide for the assumption of the Company's obligations to holders of
the Senior Notes in case of a merger or consolidation; to make any change that
would provide any additional rights or benefits to the holders of the Senior
Notes or that does not adversely affect the legal rights under the Indenture of
any such holder; or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act. However, without the consent of each holder affected, an
amendment or waiver may not (with respect to any Senior Notes held by a
non-consenting holder of Senior Notes) reduce the principal amount of Senior
Notes whose holders must consent to an amendment, supplement or waiver; reduce
the principal of or change the fixed maturity of any Senior Note or alter the
provisions with respect to the redemption of the Senior Notes (other than a
payment required by Section 3.09 or Section 4.15 of the Indenture); reduce the
rate of or change the time for payment of interest on any Senior Notes; waive a
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Senior Notes (except a rescission of acceleration of the
Senior Notes by the holders of at least a majority in aggregate principal
amount of the Senior Notes and a waiver of the payment default that resulted
from such acceleration); make any Senior Note payable in money other than that
stated in the Senior Notes; make any change in the provisions of the Indenture
relating to waivers of past Defaults or the rights of holders of Senior Notes
to receive payments of principal of, premium, if any, or interest on the Senior
Notes; waive a redemption payment with respect to any Senior Note (other than a
payment required by Section 3.09 or Section 4.15 of the Indenture) or make any
change in the foregoing amendment and waiver provisions.
12. Defaults and Remedies. Events of Default include: default for 30
days in the payment when due of interest on the Senior Notes; default in
payment when due of principal or premium, if any, on the
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Senior Notes at maturity, upon redemption or otherwise; failure by the Company
to perform or comply with the provisions described under Sections 4.07, 4.09,
4.10, 4.15 or 5.01 of the Indenture; failure by the Company for 30 days after
notice from the Trustee or the holders of at least 25% in principal amount of
the Senior Notes then outstanding to comply with its other agreements in the
Indenture or the Senior Notes; default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, which default (x) is caused by a Payment Default, and the
principal amount of any such Indebtedness, together with the principal amount of
any other such Indebtedness of the Company or any Significant Subsidiary under
which there has been a Payment Default or the maturity of which has been
accelerated as provided in clause (y), aggregates $5.0 million or more or (y)
results in the acceleration (which acceleration has not been rescinded) of such
Indebtedness prior to its express maturity and the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $5.0 million or more; failure by the Company or any
of its Subsidiaries to pay final judgments (other than any judgment as to which
a reputable insurance company has accepted full liability in writing)
aggregating in excess of $5.0 million which judgments are not paid, discharged
or stayed within 45 days after their entry; and certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the holders of
at least 25 % in principal amount of the then outstanding Senior Notes may
declare all the Senior Notes to be due and payable immediately. Upon such
declaration, the principal of, premium, if any, and accrued and unpaid interest
and Liquidated Damages, if any, on the Senior Notes shall be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company or any of its Significant Subsidiaries, the foregoing amount shall ipso
facto become due and payable without further action or notice. Holders of the
Senior Notes may not enforce the Indenture or the Senior Notes except as
provided in the Indenture. The holders of a majority in aggregate principal
amount of the Senior Notes then outstanding, by notice to the Trustee, may on
behalf of the holders of all of the Senior Notes, waive any existing Default or
Event of Default and its consequences under the Indenture, except a continuing
Default or Event of Default in the payment of interest or Liquidated Damages or
premium on, or the principal of, the Senior Notes.
13. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee; however, if the
Trustee acquires any conflicting interest, it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee
or resign.
14. No Personal Liabilities of Directors, Officers, Employees and
Stockholders. No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Senior Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each holder of
the Senior Notes by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Notes.
15. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
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00. Abbreviations. Customary abbreviations may be used in the name of
a holder of a Senior Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
17. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to holders of Senior Notes under the Indenture,
holders of Transfer Restricted Securities shall have all the rights set forth
in the Senior Note Registration Rights Agreement.
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Senior Notes and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to holders of
Senior Notes. No representation is made as to the accuracy of such numbers
either as printed on the Senior Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any holder of a Senior Note upon written
request and without charge a copy of the Indenture. Request may be made to:
Intermedia Communications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
A-7
83
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign
and transfer this Senior Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________
agent to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him or her.
--------------------------------------------------------------------------------
Date:
--------------
Your Signature:
---------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
84
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Senior Note
purchased by the Company pursuant to Section 3.09 or Section 4.15 of the
Indenture check the appropriate box:
[ ] Section 3.09 [ ] Section 4.15
If you want to have only part of the Senior Note purchased by the
Company pursuant to Section 3.09 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$
-------------
Date:
---------
Your Signature:
---------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
85
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Certificated Security, or
exchanges of a part of another Global Security or Certificated Security for an
interest in this Global Security, have been made:
Principal Amount
of
Amount of decrease Amount of increase in this Global Security Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease (or of Trustee or Note
Dated of Exchange this Global Security this Global Security increase) Custodian
----------------- -------------------- -------------------- --------- ---------
86
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Intermedia Communications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
SunTrust Bank, Central Florida, National Association
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 9 1/2% Senior Notes due 2009
Reference is hereby made to the Senior Note Indenture, dated as of
February 24, 1999 (the "Indenture"), between Intermedia Communications Inc., as
issuer (the "Company"), and SunTrust Bank, Central Florida, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
________________ (the "Transferor") owns and proposes to transfer the
Senior Note[s] or interest in such Senior Note[s] specified in Annex A hereto,
in the principal amount of $____________ in such Senior Note[s] or interests
(the "Transfer"), to ____________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS IN THE
GLOBAL SECURITY OR CERTIFICATED SECURITIES PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the Book-Entry
Interests or Certificated Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Book-Entry Interests or
Certificated Securities for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred Book-Entry Interest
or Certificated Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Global Security and/or
the Certificated Security and in the Indenture and the Securities Act.
2. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY
INTERESTS IN THE GLOBAL SECURITY OR CERTIFICATED SECURITIES PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to Book-Entry Interests in the Restricted Global Security and
Certificated Securities bearing the Private Placement Legend and pursuant to and
in accordance with the Securities Act and any applicable blue sky securities
laws of any State of the United States, and accordingly the Transferor hereby
further certifies that (check one):
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87
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A and the Transferor hereby further certifies
that the Transfer complies with the transfer restrictions applicable to
Book-Entry Interests in a Restricted Global Security or Certificated Securities
bearing the Private Placement Legend and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that (1) such
Transfer is in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred Book-Entry Interest or Certificated
Security will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Global Security and/or the Certificated
Securities and in the Indenture and the Securities Act.
3. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS IN THE
UNRESTRICTED GLOBAL SECURITY OR IN CERTIFICATED SECURITIES THAT DO NOT BEAR THE
PRIVATE PLACEMENT LEGEND.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred Book-Entry Interests or
Certificated Securities will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Security, on Certificated Securities bearing the Private Placement
Legend and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144 and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Book-Entry Interests or Certificated
Securities will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend
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88
printed on the Restricted Global Security or Certificated Securities bearing the
Private Placement Legend and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------
[NAME OF TRANSFEROR]
By:
----------------------------------
Name:
Title:
Dated:_______________, _____
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89
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Book-Entry Interests in the Global Security:
(i) [ ] 144A Global Security (CUSIP ______); or
(ii) [ ] IAI Global Security (CUSIP _______); or
(b) [ ] Restricted Certificated Securities.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] Book-Entry Interests in the:
(i) [ ] 144A Global Security (CUSIP _____); or
(ii) [ ] IAI Global Security (CUSIP _____); or
(iii)[ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Restricted Certificated Securities; or
(c) [ ] Certificated Securities that do not bear the Private
Placement Legend, in accordance with the terms of the
Indenture.
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90
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Intermedia Communications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
SunTrust Bank, Central Florida, National Association
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 9 1/2% Senior Notes due 2009
(CUSIP ____________
Reference is hereby made to the Senior Note Indenture, dated as of
February 24, 1999 (the "Indenture"), between Intermedia Communications Inc., as
issuer (the "Company") and SunTrust Bank, Central Florida, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________ (the "Holder") owns and proposes to exchange the Senior
Note[s] or interest in such Senior Note[s] specified herein, in the principal
amount of $_____________ in such Senior Note[s] or interests (the "Exchange").
In connection with the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED CERTIFICATED SECURITIES OR RESTRICTED BOOK-ENTRY
INTERESTS FOR CERTIFICATED SECURITIES THAT DO NOT BEAR THE PRIVATE PLACEMENT
LEGEND OR UNRESTRICTED BOOK-ENTRY INTERESTS
(a) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED BOOK-ENTRY INTEREST TO
UNRESTRICTED BOOK-ENTRY INTEREST. In connection with the Exchange of the
Holder's Restricted Book-Entry Interest for Unrestricted Book-Entry Interests
in an equal principal amount, the Holder hereby certifies (i) the Unrestricted
Book-Entry Interests are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Security and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Book-Entry Interests are being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED BOOK-ENTRY INTEREST TO
CERTIFICATED SECURITIES THAT DO NOT BEAR THE PRIVATE PLACEMENT LEGEND. In
connection with the Exchange of the Holder's Restricted Book-Entry Interests
for Certificated Securities that do not bear the Private Placement Legend, the
Holder hereby certifies (i) the Certificated Securities are being acquired for
the Holder's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Security and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement
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91
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Certificated Securities are being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED SECURITIES
TO UNRESTRICTED BOOK-ENTRY INTERESTS. In connection with the Holder's Exchange
of Restricted Certificated Securities for Unrestricted Book-Entry Interests, (i)
the Unrestricted Book-Entry Interests are being acquired for the Holder's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Certificated Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Book-Entry Interests are being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED SECURITIES
TO CERTIFICATED SECURITIES THAT DO NOT BEAR THE PRIVATE PLACEMENT LEGEND. In
connection with the Holder's Exchange of a Restricted Certificated Security for
Certificated Securities that do not bear the Private Placement Legend, the
Holder hereby certifies (i) the Certificated Securities that do not bear the
Private Placement Legend are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Certificated Securities and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Senior Notes
are being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
2. EXCHANGE OF RESTRICTED CERTIFICATED SECURITIES OR RESTRICTED BOOK-ENTRY
INTERESTS FOR RESTRICTED CERTIFICATED SECURITIES OR RESTRICTED BOOK-ENTRY
INTERESTS
(a) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED BOOK-ENTRY INTERESTS TO
RESTRICTED CERTIFICATED SECURITY. In connection with the Exchange of the
Holder's Restricted Book-Entry Interest for Restricted Certificated Securities
with an equal principal amount, (i) the Restricted Certificated Securities are
being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Security and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Certificated Securities issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Certificated Securities and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED SECURITIES
TO RESTRICTED BOOK-ENTRY INTERESTS. In connection with the Exchange of the
Holder's Restricted Certificated Security for Restricted Book-Entry Interests in
the [CHECK ONE] [ ] 144A Global Security, [ ] IAI Global Security, (i) the
Restricted Book-Entry Interests are being acquired for the Holder's own account
without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Certificated Security and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Book-Entry Interests issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.
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92
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------
[Insert Name of Holder]
By:
-------------------------------
Name:
Title:
Dated:______________,____
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EXHIBIT D
FORM OF CERTIFICATE OF
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Intermedia Communications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
SunTrust Bank, Central Florida, National Association
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Re: 9 1/2% Senior Notes due 2009
Reference is hereby made to the Senior Note Indenture, dated as of
February 24, 1999 (the "Indenture"), between Intermedia Communications Inc., as
issuer (the "Company") and SunTrust Bank, Central Florida, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $_____________ aggregate
principal amount of:
(a) [ ] Book-Entry Interests, or
(b) [ ] Certificated Securities,
we confirm that:
1. We understand that any subsequent transfer of the Senior Notes or
any interest therein is subject to certain restrictions and conditions set
forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Senior Notes or any interest therein
except in compliance with, such restrictions and conditions and the United
States Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Notes have not
been registered under the Securities Act, and that the Senior Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the
Senior Notes or any interest therein, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and an Opinion of Counsel in form reasonably acceptable to the Company to the
effect that such transfer is in compliance with the Securities Act, (D)
pursuant to any other available exemption from the registration requirements
under the Securities Act, provided that, prior to such transfer, we furnish to
you and to the Company a signed letter substantially in the form of this letter
and an Opinion of Counsel in form reasonably acceptable to the Company to the
effect that such transfer is in compliance with the Securities Act or (E)
pursuant to an effective registration statement under the Securities Act, and
we
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94
further agree to provide to any person purchasing the Certificated Securities or
Book-Entry Interests from us in a transaction meeting the requirements of
clauses (A) through (D) of this paragraph a notice advising such purchaser that
resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Senior Notes or
Book-Entry Interests, we will be required to furnish to you and the Company
such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Senior Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Senior
Notes, and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
5. We are acquiring the Senior Notes or Book-Entry Interests purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
----------------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------------
Name:
Title:
Dated:_______________,___
D-2
