Exhibit 4.1(ii)
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NEXTLINK COMMUNICATIONS, INC.
TO
U.S. TRUST COMPANY OF TEXAS
TRUSTEE
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Indenture
Dated as of November 17, 1999
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$455,000,000
12 1/8% SENIOR DISCOUNT NOTES DUE 2009
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NEXTLINK COMMUNICATIONS, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
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section.310(a)(1) ................................................................ 609
(a)(2) ................................................................ 609
(a)(3) ................................................................ Not Applicable
(a)(4) ................................................................ Not Applicable
(b) ................................................................ 608
610
section.311(a) ................................................................... 613
(b) ................................................................... 613
section.312(a) ................................................................... 701
(b) ................................................................... 702
(c) ................................................................... 702
section.313(a) ................................................................... 703
(b) ................................................................... 703
(c) ................................................................... 703
(d) ................................................................... 703
section.314(a) ................................................................... 704
1018
(b) ................................................................... Not Applicable
(c)(1) ................................................................ 102
(c)(2) ................................................................ 102
(c)(3) ................................................................ Not Applicable
(d) ................................................................... Not Applicable
(e) ................................................................... 102
section.315(a) ................................................................... 601
(b) ................................................................... 602
(c) ................................................................... 601
(d) ................................................................... 601
(e) ................................................................... 514
section.316(a)(1)(A) ............................................................. 502
512
(a)(1)(B) ............................................................. 513
(a)(2) ................................................................ Not Applicable
(b) ................................................................... 000
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Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Section Section
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(c) ................................................................... 104
section. 317(a)(1) ................................................................ 503
(a)(2) ................................................................ 504
(b) ................................................................... 1003
section. 318(a) ................................................................... 107
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TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY..................................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions .........................................................................2
Accreted Value ......................................................................2
Acquired Debt .......................................................................3
Act .................................................................................3
Additional Interest .................................................................3
Affiliate ...........................................................................3
Agent Member ........................................................................4
Applicable Procedures ...............................................................4
Asset Disposition ...................................................................4
Attributable Value ..................................................................5
Bank Credit Agreement ...............................................................5
Board of Directors ..................................................................6
Board Resolution ....................................................................6
Business Day ........................................................................6
Capital Lease Obligation ............................................................6
Capital Stock .......................................................................6
Cedel................................................................................6
Change of Control....................................................................6
Commission ..........................................................................7
Common Equity .......................................................................7
Company .............................................................................7
Company Request .....................................................................7
Company Order .......................................................................7
Consolidated Capital Ratio ..........................................................7
Consolidated Cash Flow Available for
Fixed Charges ...................................................................7
Consolidated Income Tax Expense .....................................................8
Consolidated Interest Expense .......................................................8
Consolidated Net Income .............................................................9
Consolidated Net Worth .............................................................10
Consolidated Tangible Assets .......................................................10
Corporate Trust Office .............................................................11
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Page
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corporation ........................................................................11
Debt ...............................................................................11
Default ............................................................................12
Defaulted Interest ..................................................................13
Depositary ..........................................................................13
Disqualified Stock ..................................................................13
DTC .................................................................................13
Eagle River .........................................................................13
Eligible Instituti on ...............................................................14
Eligible Receivables ................................................................14
Euroclear ...........................................................................14
Event of Default ....................................................................14
Exchange Act ........................................................................14
Exchange Offer ......................................................................14
Exchange Registration Statement .....................................................14
Exchange Security ...................................................................14
Expiration Date .....................................................................15
Global Security .....................................................................15
Government Securities ...............................................................15
Guarantee ...........................................................................15
Holder ..............................................................................16
Incur ...............................................................................16
Indenture ...........................................................................16
Interest Payment Date ...............................................................16
Interest Rate or Currency Protection
Agreement .......................................................................17
Investment ..........................................................................17
Issue Date ..........................................................................17
Joint Venture .......................................................................17
Lien ................................................................................17
Marketable Securities ...............................................................18
Maturity ............................................................................18
Net Available Proceeds ..............................................................19
Offer to Purchase ...................................................................20
Officers' Certificate ...............................................................23
Opinion of Counsel ..................................................................23
Original Securities .................................................................23
Outstanding .........................................................................23
Paying Agent ........................................................................25
Permitted Interest Rate or Currency
Protection Agreement ..............................................................25
Permitted Investment ................................................................25
Permitted Liens .....................................................................26
Person ..............................................................................27
Predecessor Security ................................................................27
Preferred Dividends .................................................................27
Preferred Stock .....................................................................28
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Page
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Purchase Agreement ..................................................................28
Purchase Date .......................................................................28
Purchase Money Debt .................................................................28
Purchasers ..........................................................................28
readily marketable cash equivalents .................................................29
Receivables .........................................................................29
Receivables Sale ....................................................................29
Redemption Date .....................................................................29
Redemption Price ....................................................................30
Registered Securities ...............................................................30
Regular Record Date .................................................................30
Regulation S ........................................................................30
Regulation S Certificate ............................................................30
Regulation S Global Security ........................................................30
Regulation S Legend .................................................................30
Regulation S Securities .............................................................30
Related Person ......................................................................30
Resale Registration Statement .......................................................31
Responsible Officer .................................................................31
Restricted Global Security ..........................................................31
Restricted Period ...................................................................31
Restricted Securities ...............................................................31
Restricted Securities Certificate ...................................................31
Restricted Securities Legend ........................................................31
Restricted Subsidiary ...............................................................32
Rule 144A ...........................................................................32
Rule 144A Securities ................................................................32
Sale and Leaseback Transaction ......................................................32
SEC Reports .........................................................................32
Securities ..........................................................................32
Securities Act ......................................................................32
Securities Act Legend ...............................................................32
Security Register ...................................................................32
Security Registrar ..................................................................32
Significant Subsidiary ..............................................................33
Special Record Date .................................................................33
Stated Maturity .....................................................................33
Step-Down Date ......................................................................33
Step-Up .............................................................................33
Subordinated Debt ...................................................................33
Subsidiary ..........................................................................35
Successor Security ..................................................................35
Telecommunications Assets ...........................................................35
Telecommunications Business .........................................................35
Trustee .............................................................................36
Trust Indenture Act .................................................................36
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PAGE
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Unrestricted Securities Certificate .................................................36
Unrestricted Subsidiary .............................................................36
Vendor Financing Facility ...........................................................37
Vice President ......................................................................38
Voting Stock ........................................................................38
Wholly-Owned Restricted Subsidiary ..................................................38
SECTION 102. Compliance Certificates and Opinions.................................................38
SECTION 103. Form of Documents Delivered to Trustee...............................................39
SECTION 104. Acts of Holders; Record Dates........................................................40
SECTION 105. Notices, Etc., to Trustee and Company................................................43
SECTION 106. Notice to Holders; Waiver............................................................44
SECTION 107. Application of Trust Indenture Act...................................................44
SECTION 108. Effect of Headings and Table of Contents.............................................45
SECTION 109. Successors and Assigns...............................................................45
SECTION 110. Separability Clause..................................................................45
SECTION 111. Benefits of Indenture................................................................45
SECTION 112. Governing Law........................................................................46
SECTION 113. Legal Holidays.......................................................................46
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally......................................................................46
SECTION 202. Form of Face of Security.............................................................47
SECTION 203. Form of Reverse of Security..........................................................53
SECTION 204. Additional Provisions Required in Global
Security.............................................................................58
SECTION 205. Form of Trustee's Certificate of
Authentication.......................................................................59
ARTICLE THREE
The Securities
SECTION 301. Title and Terms......................................................................59
SECTION 302. Denominations........................................................................62
SECTION 303. Execution, Authentication, Delivery and
Dating...............................................................................62
SECTION 304. Temporary Securities.................................................................63
SECTION 305. Registration, Registration of Transfer
and Exchange................................................................64
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities...........................................................................70
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PAGE
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SECTION 307. Payment of Interest; Interest Rights
Preserved............................................................................71
SECTION 308. Persons Deemed Owners................................................................73
SECTION 309. Cancellation.........................................................................73
SECTION 310. Computation of Interest..............................................................73
SECTION 311. CUSIP and ISIN Numbers...............................................................74
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture..............................................74
SECTION 402. Application of Trust Money...........................................................76
ARTICLE FIVE
Remedies
SECTION 501. Events of Default....................................................................76
SECTION 502. Acceleration of Maturity; Rescission and
Annulment............................................................................78
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...............................................................80
SECTION 504. Trustee May File Proofs of Claim.....................................................81
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities....................................................82
SECTION 506. Application of Money Collected.......................................................82
SECTION 507. Limitation on Suits..................................................................83
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest......................................................84
SECTION 509. Restoration of Rights and Remedies...................................................84
SECTION 510. Rights and Remedies Cumulative.......................................................84
SECTION 511. Delay or Omission Not Waiver.........................................................85
SECTION 512. Control by Holders...................................................................85
SECTION 513. Waiver of Past Defaults..............................................................86
SECTION 514. Undertaking for Costs................................................................86
SECTION 515. Waiver of Stay or Extension Laws.....................................................87
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities..................................................87
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ARTICLE SIX
The Trustee
SECTION 602. Notice of Defaults...................................................................87
SECTION 603. Certain Rights of Trustee............................................................88
SECTION 604. Not Responsible for Recitals or
Issuance of Securities......................................................89
SECTION 605. May Hold Securities..................................................................89
SECTION 606. Money Held in Trust..................................................................90
SECTION 607. Compensation and Reimbursement.......................................................90
SECTION 608. Disqualification; Conflicting Interests..............................................91
SECTION 609. Corporate Trustee Required; Eligibility..............................................91
SECTION 610. Resignation and Removal; Appointment of
Successor............................................................................92
SECTION 611. Acceptance of Appointment by Successor...............................................93
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business...............................................................94
SECTION 613. Preferential Collection of Claims
Against the Company.........................................................95
SECTION 614. Appointment of Authenticating Agent..................................................95
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and the Company
Page
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SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders........................................................97
SECTION 702. Preservation of Information;
Communications to Holders............................................... ...97
SECTION 703. Reports by Trustee................................................................ ..98
SECTION 704. Reports by Company...................................................................98
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates.................................................99
ARTICLE EIGHT
Merger, Consolidation, Etc.
Page
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SECTION 801. Mergers, Consolidations and Certain
Sales of Assets.............................................................99
SECTION 802. Successor Substituted...............................................................101
ARTICLE NINE
Supplemental Indentures
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PAGE
SECTION 901. Supplemental Indentures Without
Consent of Holders.........................................................101
SECTION 902. Supplemental Indentures with Consent
of Holders.................................................................102
SECTION 903. Execution of Supplemental Indentures................................................104
SECTION 904. Effect of Supplemental Indentures...................................................104
SECTION 905. Conformity with Trust Indenture Act.................................................104
SECTION 906. Reference in Securities to Supplemental
Indentures..........................................................................104
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest...................................................................105
SECTION 1002. Maintenance of Office or Agency.....................................................105
SECTION 1003. Money for Security Payments to be
Held in Trust..............................................................106
SECTION 1004. Existence...........................................................................108
SECTION 1005. Maintenance of Properties and Insurance.............................................108
SECTION 1006. Payment of Taxes and Other Claims...................................................109
SECTION 1007. Limitation on Consolidated Debt.....................................................109
SECTION 1008. Limitation on Debt and Preferred Stock
of Restricted Subsidiaries.................................................114
SECTION 1009. Limitation on Restricted Payments...................................................118
SECTION 1010. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries........................................................................121
SECTION 1011. Limitation on Liens.................................................................123
SECTION 1012. Limitation on Sale and Leaseback
Transactions...............................................................125
SECTION 1013. Limitation on Asset Dispositions....................................................126
SECTION 1014. Limitation on Issuances and Sales
of Capital Stock of Restricted
Subsidiaries...............................................................129
SECTION 1015. Transactions with Affiliates and Related
Persons.............................................................................130
SECTION 1016. Change of Control...................................................................131
SECTION 1017. Provision of Financial Information..................................................133
SECTION 1018. Statement by Officers as to Default.................................................133
SECTION 1019. Waiver of Certain Covenants.........................................................134
SECTION 1020. Limitation on Use of Proceeds.......................................................134
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.................................................................134
SECTION 1102. Applicability of Article............................................................135
SECTION 1103. Election to Redeem; Notice to Trustee...............................................135
SECTION 1104. Securities to Be Redeemed Pro Rata..................................................136
SECTION 1105. Notice of Redemption................................................................136
SECTION 1106. Deposit of Redemption Price.........................................................138
SECTION 1107. Securities Payable on Redemption Date...............................................138
SECTION 1108. Securities Redeemed in Part.........................................................138
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or
Covenant Defeasance.................................................................139
SECTION 1202. Defeasance and Discharge............................................................139
SECTION 1203. Covenant Defeasance.................................................................140
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance..........................................................................141
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions............................................................144
SECTION 1206. Reinstatement.......................................................................144
SECTION 1207. Repayment to Company................................................................145
ANNEX A - Form of Regulation S Certificate
ANNEX B - Form of Restricted Securities Certificate
ANNEX C - Form of Unrestricted Securities Certificate
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INDENTURE, dated as of November 17, 1999, between NEXTLINK
Communications, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), having its principal office at 000 000xx Xxxxxx X.X.,
Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000, and U.S. Trust Company of Texas, duly
organized and existing under the laws of the State of Texas, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
$455,000,000 aggregate principal amount of its 12 1/8% Senior Discount Notes due
2009 (the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture. The Securities may consist of Original Securities
and/or Exchange Securities, each as defined herein. The Original Securities and
the Exchange Securities shall rank pari passu in right of payment with all
existing and future senior obligations of the Company.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles (whether or not such is indicated herein) and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted as consistently applied by the Company at the
date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Accreted Value" means, (x) as of any date prior to December
1, 2004, an amount per $1,000 principal amount at maturity of Securities that is
equal to the sum of
(a) the offering price ($552.57 per $1,000 principal amount at
maturity of Securities) of such Securities and
(b) the portion of the excess of the principal amount of such
Securities over such offering price which shall have been
amortized on a daily basis and compounded semi-annually on
each June 1 and December 1 at the rate of 12 1/8% per annum
from the date of original issue of the Securities through the
date of determination computed on the basis of a 360-day year
of twelve 30-day months, and
(y) as of any date on or after December 1, 2004, the principal amount
of each Security.
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"Acquired Debt" means, with respect to any
specified Person,
(i) Debt of any other Person existing at the time such Person merges
with or into or consolidates with or becomes a Restricted Subsidiary of such
specified Person and
(ii) Debt secured by a Lien encumbering any asset acquired by such
specified Person, which Debt was not Incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning set forth in the form of
Security contained in Section 202. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Additional
Interest.
"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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant
in, the Depository.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect from
time to time.
-3-
"Asset Disposition" by the Company or any Restricted
Subsidiary means any transfer, conveyance, sale, lease or other disposition
(other than a creation of a Lien) by such Person, (including a consolidation or
merger or other sale of any such Restricted Subsidiary with, into or to another
Person in a transaction in which such Restricted Subsidiary ceases to be a
Restricted Subsidiary of the Company, but excluding a disposition by a
Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary
of the Company or by the Company to a Restricted Subsidiary of the Company) of
(i) shares of Capital Stock or other ownership interests of a
Restricted Subsidiary of the Company, (including the issuance of Capital Stock
by a Restricted Subsidiary) other than as permitted by the provisions of Section
1008 or pursuant to a transaction in compliance with Section 801,
(ii) substantially all of the assets of the Company or any of its
Restricted Subsidiaries representing a division or line of business (other than
as part of a Permitted Investment) or
(iii) other assets or rights of the Company or any of
its Restricted Subsidiaries other than
(A) in the ordinary course of business or
(B) that constitutes a Restricted Payment which is permitted
by the provisions of Section 1009; PROVIDED that a transaction described in
clauses (i), (ii) and (iii) shall constitute an Asset Disposition only if the
aggregate consideration for such transfer, conveyance, sale, lease or other
disposition is equal to $5 million or more in any 12-month period.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capital Lease Obligation,
and at any date as of which the amount thereof is to be determined, the total
net amount of rent required to be paid by such Person under such lease during
the initial term thereof as determined in accordance with generally accepted
accounting principles, discounted from the last date of such initial term to the
date of determination at a rate per annum equal to the discount rate which would
be applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under
-4-
any such lease for any such period shall be the aggregate amount of rent payable
by the lessee with respect to such period after excluding amounts required to be
paid on account of insurance, taxes, assessments, utility, operating and labor
costs and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of penalty, such net amount shall also include the
lesser of the amount of such penalty (in which case no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated) or the rent which would otherwise be required to be
paid if such lease is not so terminated. "Attributable Value" means, as to a
Capital Lease Obligation, the principal amount thereof.
"Bank Credit Agreement" means any one or more credit
agreements (which may include or consist of revolving credits) between the
Company or any Restricted Subsidiary of the Company and one or more banks or
other financial institutions providing financing for the business of the Company
and its Restricted Subsidiaries.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The Borough of
Manhattan, The City of New York, New York are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles (a "Capital Lease"). The stated
maturity of such obligation shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee
-5-
without payment of a penalty. The principal amount of such obligation shall be
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Cedel" means Cedel Bank, S.A. (or any successor
securities clearing agency).
"Change of Control" has the meaning specified in
Section 1016.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Equity" of any Person means Capital Stock of such
Person that is not Disqualified Stock, and a "sale of Common Equity" includes
any sale of Common Equity effected by private sale or public offering.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) the Chief Executive Officer,
the President, an Executive Vice President or a Vice President of the Company,
and (ii) the Treasurer, Assistant Treasurer or Secretary of the Company, and
delivered to the Trustee.
"Consolidated Capital Ratio" of any Person as of
any date means the ratio of
(i) the aggregate consolidated principal amount of Debt (or in the case
of Debt issued at a discount the accreted amount thereof) of such Person then
outstanding (which amount of Debt shall be reduced by any amount of cash or
-6-
cash equivalent collateral securing on a perfected basis and dedicated for
disbursement exclusively to the payment of principal of and interest on such
Debt) to
(ii) the aggregate consolidated Capital Stock (other than Disqualified
Stock) and paid in capital (other than in respect of Disqualified Stock) of such
Person as of such date.
"Consolidated Cash Flow Available for Fixed Charges" for any
period means the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period increased by the sum of
(i) Consolidated Interest Expense of the Company and
its Restricted Subsidiaries for such period, plus
(ii) Consolidated Income Tax Expense of the Company and
its Restricted Subsidiaries for such period, plus
(iii) the consolidated depreciation and amortization expense included
in the income statement of the Company and its Restricted Subsidiaries for such
period, plus
(iv) any noncash expense for such period (excluding any noncash charge
to the extent that it requires an accrual of or a reserve for cash disbursements
in any future period), plus
(v) any charge related to any premium or penalty paid in connection
with redeeming or retiring any Debt prior to its stated maturity; PROVIDED,
HOWEVER, that there shall be excluded therefrom the Consolidated Cash Flow
Available for Fixed Charges (if positive) of any Restricted Subsidiary of the
Company (calculated separately for such Restricted Subsidiary in the same manner
as provided above for the Company) that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the
consolidated interest expense included in a
-7-
consolidated income statement (excluding interest income) of the Company and its
Restricted Subsidiaries for such period calculated on a consolidated basis in
accordance with generally accepted accounting principles, including without
limitation or duplication (or, to the extent not so included, with the addition
of),
(i) the amortization of Debt discounts;
(ii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities;
(iii) fees with respect to interest rate swap or similar agreements or
foreign currency hedge, exchange or similar agreements;
(iv) Preferred Dividends of the Company and its Restricted Subsidiaries
(other than dividends paid in shares of Preferred Stock that is not Disqualified
Stock) declared and paid or payable;
(v) accrued Disqualified Stock dividends of the Company
and its Restricted Subsidiaries, whether or not declared or
paid;
(vi) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries; and
(vii) the portion of any Capital Lease Obligation paid or accrued
during such period that is allocable to interest expense.
"Consolidated Net Income" for any period means the
consolidated net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with generally
accepted accounting principles; PROVIDED that there shall be excluded therefrom
(a) the net income (or loss) of any Person acquired by the Company or a
Restricted Subsidiary of the Company in a pooling-of-interests transaction for
any period prior to the date of such transaction,
(b) the net income (or loss) of any Person that is not a Restricted
Subsidiary of the Company except to the extent of the amount of dividends or
other distributions actually paid to the Company or a Restricted Subsidiary of
the Company by such Person during such period,
-8-
(c) gains or losses on Asset Dispositions by the
Company or its Restricted Subsidiaries,
(d) all extraordinary gains and extraordinary losses,
(e) the cumulative effect of changes in accounting
principles,
(f) non-cash gains or losses resulting from
fluctuations in currency exchange rates,
(g) any non-cash gain or loss realized on the
termination of any employee pension benefit plan and
(h) the tax effect of any of the items described in clauses (a) through
(g) above; PROVIDED, FURTHER, that for purposes of any determination pursuant to
the provisions of Section 1009 there shall further be excluded therefrom the net
income (but not net loss) of any Restricted Subsidiary of the Company that is
subject to a restriction which prevents the payment of dividends or the making
of distributions to the Company or another Restricted Subsidiary of the Company
to the extent of such restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Disqualified Stock of such Person; PROVIDED that, with respect
to the Company, adjustments following the date of this Indenture to the
accounting books and records of the Company in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Company by another
Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person means the total
amount of assets (less applicable reserves and other properly deductible items)
which under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Restricted Subsidiaries after
deducting therefrom all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such consolidated
balance sheet; PROVIDED that, with respect to the Company, adjustments following
the date of this Indenture to the accounting books and records of the Company in
accordance with Accounting Principles Board
-9-
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Corporate Trust Office" means the principal office of the
United States Trust Company of New York in the Borough of Manhattan, The City of
New York, New York, at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" means a corporation, association, company,
limited liability company, joint-stock company or business trust.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent,
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including any such obligations Incurred in
connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which are being
contested in good faith),
(v) every Capital Lease Obligation of such Person,
(vi) all Receivables Sales of such Person, together with any obligation
of such Person to pay any discount, interest, fees, indemnities, penalties,
recourse, expenses or other amounts in connection therewith,
(vii) all obligations to redeem Disqualified Stock
issued by such Person,
(viii) every obligation under Interest Rate or Currency
Protection Agreements of such Person and
-10-
(ix) every obligation of the type referred to in clauses (i) through
(viii) of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed.
The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by
(a) any Debt issued at a price that is less than the principal amount
at maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with generally accepted accounting principles,
(b) any Receivables Sale, shall be the amount of the unrecovered
capital or principal investment of the purchaser (other than the Company or a
Wholly-Owned Restricted Subsidiary of the Company) thereof, excluding amounts
representative of yield or interest earned on such investment,
(c) any Disqualified Stock, shall be the maximum fixed
redemption or repurchase price in respect thereof,
(d) any Capital Lease Obligation, shall be determined
in accordance with the definition thereof, or
(e) any Permitted Interest Rate or Currency Protection
Agreement, shall be zero. In no event shall Debt include
any liability for taxes.
"Default" means an event that with the passing of time or the
giving of notice or both shall constitute an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in the form of one or more Global Securities, DTC for
so long as it shall be a clearing agency registered under the Exchange Act, or
such successor (which shall be a clearing agency registered under the Exchange
Act) as the Company shall designate from time to time in an Officers'
Certificate delivered to the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of
such Person (other than Capital Stock outstanding on the Issue Date) which, by
its terms (or by
-11-
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final Stated Maturity of the Securities (or, if earlier, the date as of which
the Securities have been paid in full); PROVIDED, HOWEVER, that any Preferred
Stock which would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require the Company to repurchase or redeem
such Preferred Stock upon the occurrence of an asset sale or a Change of Control
occurring prior to the final Stated Maturity of the Securities shall not
constitute Disqualified Stock if the asset sale or change of control provisions
applicable to such Preferred Stock are no more favorable to the holders of such
Preferred Stock than the provisions applicable to the Securities contained in
Section 1013 or Section 1016 and such Preferred Stock specifically provides that
the Company will not repurchase or redeem any such stock pursuant to such
provisions prior to the Company's repurchase of such Securities as are required
to be repurchased pursuant to Section 1013 or Section 1016.
"DTC" means The Depository Trust Company.
"Eagle River" means Eagle River Investments, L.L.C., a limited
liability company formed under the laws of the State of Washington.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A-3" or higher, "A" or
higher or "A" or higher according to Xxxxx'x Investors Service, Inc., Standard &
Poor's Ratings Group or Duff & Xxxxxx Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)) respectively,
at the time as of which any investment or rollover therein is made.
"Eligible Receivables" means, at any time, Receivables of the
Company and its Restricted Subsidiaries, as evidenced on the most recent
quarterly consolidated balance sheet of the Company as at a date at least 45
days prior to such time arising in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company.
-12-
"Euroclear" means the Euroclear Clearance System
(or any successor securities clearing agency).
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended (or any successor act) and the rules and regulations thereunder.
"Exchange Offer" has the meaning set forth in the
form of the Securities contained in Section 202.
"Exchange Registration Statement" has the meaning
set forth in the form of the Securities contained in
Section 202.
"Exchange Security" means any Security issued in exchange for
an Original Security or Original Securities pursuant to the Exchange Offer or
otherwise registered under the Securities Act and any Security with respect to
which the next preceding Predecessor Security of such Security was an Exchange
Security.
"Expiration Date" has the meaning set forth in the definition
of "Offer to Purchase" in this Section 101.
"Global Security" means a Security in the form prescribed in
Section 204 evidencing all or part of the Securities, issued to the Depositary
or its nominee, and registered in the name of such Depositary or its nominee.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged and which have a remaining weighted average life to maturity of not more
than 18 months from the date of Investment therein.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or to purchase (or to
-13-
advance or supply funds for the purchase of) any security for the payment of
such Debt,
(ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the
payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and
"Guarantor" shall have meanings correlative to the foregoing); PROVIDED,
HOWEVER, that the Guarantee by any Person shall not include endorsements by such
Person for collection or deposit, in either case, in the ordinary course of
business; and PROVIDED, FURTHER, that the incurrence by a Restricted Subsidiary
of the Company of a lien permitted under clause (iv) of the second paragraph of
Section 1011 shall not be deemed to constitute a Guarantee by such Restricted
Subsidiary of any Purchase Money Debt of the Company secured thereby.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation including by acquisition of Subsidiaries or the recording, as
required pursuant to generally accepted accounting principles or otherwise, of
any such Debt or other obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such Debt
and that neither the accrual of interest nor the accretion of original issue
discount shall be deemed an Incurrence of Debt; PROVIDED, FURTHER, HOWEVER, that
the Company may elect to treat all or any portion of revolving credit debt of
the Company or a Subsidiary as being incurred from and after any date beginning
the date the revolving credit commitment is extended to the Company or a
Subsidiary, by furnishing notice thereof to the Trustee, and any borrowings or
reborrowings by the Company or a Subsidiary under such commitment up to the
amount of such commitment designated by the Company as Incurred shall
-14-
not be deemed to be new Incurrences of Debt by the Company or such Subsidiary.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity
of an installment of interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person
means any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) to, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by, any other Person, including any payment on a
Guarantee of any obligation of such other Person, but excluding any loan,
advance or extension of credit to an employee of the Company or any of its
Restricted Subsidiaries in the ordinary course of business, accounts receivable
and other commercially reasonable extensions of trade credit.
"Issue Date" means the date on which the Securities are first
authenticated and delivered under this Indenture.
"Joint Venture" means a corporation, partnership or other
entity engaged in one or more Telecommunications Businesses as to which the
Company (directly or through one or more Restricted Subsidiaries) exercises
managerial control and in which the Company owns
(i) a 50% or greater interest, or
(ii) a 30% or greater interest, together with options or other
contractual rights, exercisable not more than seven years after the Company's
initial Investment in such Joint Venture, to increase its interest to not less
than 50%.
-15-
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables Sale,
deposit arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Marketable Securities" means:
(i) Government Securities;
(ii) any time deposit account, money market deposit and certificate of
deposit maturing not more than 365 days after the date of acquisition issued by,
or time deposit of, an Eligible Institution;
(iii) commercial paper maturing not more than 365 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 "P-1"
or higher according to Xxxxx'x Investors Service, Inc., "A-1" or higher
according to Standard & Poor's Ratings Group or "A-1" or higher according to
Duff & Xxxxxx Credit Rating Co. (or such similar equivalent rating by at least
one "nationally recognized statistical rating organization" (as defined in Rule
436 under the Securities Act));
(iv) any banker's acceptances or money market deposit
accounts issued or offered by an Eligible Institution;
(v) repurchase obligations with a term of not more than 7 days for
Government Securities entered into with an Eligible Institution;
(vi) auction-rate preferred stocks of any corporation maturing within
90 days after the date of acquisition by the Company thereof, having a rating of
at least AA by Standard & Poor's; and
(vii) any fund investing exclusively in investments of the types
described in clauses (i) through (vi) above.
"Maturity", when used with respect to any Security, means the
date on which the principal of such
-16-
Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Debt or other obligations relating to such
properties or assets) therefrom by such Person, net of
(i) all legal, title and recording tax expenses, commissions and other
fees and expenses Incurred and all federal, state, provincial, foreign and local
taxes (including taxes payable upon payment or other distribution of funds from
a foreign subsidiary to the Company or another subsidiary of the Company)
required to be accrued as a liability as a consequence of such Asset
Disposition,
(ii) all payments made by such Person or its Restricted Subsidiaries on
any Debt which is secured by such assets in accordance with the terms of any
Lien upon or with respect to such assets or which must by the terms of such
Lien, or in order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments made to minority interest
holders in Restricted Subsidiaries of such Person or joint ventures as a result
of such Asset Disposition,
(iv) appropriate amounts to be provided by such Person or any
Restricted Subsidiary thereof, as the case may be, as a reserve in accordance
with generally accepted accounting principles against any liabilities associated
with such assets and retained by such Person or any Restricted Subsidiary
thereof, as the case may be, after such Asset Disposition, including, without
limitation, liabilities under any indemnification obligations and severance and
other employee termination costs associated with such Asset Disposition, in each
case as determined by the Board of Directors, in its reasonable good faith
judgment evidenced by a Board Resolution filed with the Trustee; PROVIDED,
HOWEVER, that any reduction in such reserve within twelve months following the
consummation of such Asset Disposition will be treated for all purposes of this
Indenture and the
-17-
Securities as a new Asset Disposition at the time of such reduction with Net
Available Proceeds equal to the amount of such reduction, and (v) any
consideration for an Asset Disposition (which would otherwise constitute Net
Available Proceeds) that is required to be held in escrow pending determination
of whether a purchase price adjustment will be made, but amounts under this
clause
(v) shall become Net Available Proceeds at such time and to the extent
such amounts are released to such Person.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Offer offering to
purchase up to the principal amount of Securities specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Securities within five Business Days after
the Expiration Date. The Company shall notify the Trustee at least 15 Business
Days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company's obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make an
informed decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by
-18-
applicable law to be included therein). The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(a) the Section of this Indenture pursuant to
which the Offer to Purchase is being made;
(b) the Expiration Date and the Purchase Date;
(c) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to Section 1013 or 1016) (the "Purchase
Amount");
(d) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment
(as specified pursuant to this Indenture) (the "Purchase Price");
(e) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(f) the place or places where Securities are to
be surrendered for tender pursuant to the Offer to
Purchase;
(g) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(h) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
(i) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of
-19-
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(j) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his
tender;
(k) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased);
(l) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered;
and
(m) the CUSIP number or numbers of the Securities offered to
be purchased by the Company pursuant to the Offer to Purchase.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by (i) the
Chief Executive Officer, President, an Executive Vice President or a Vice
President, and (ii) the Treasurer, Assistant Treasurer, Secretary or an
Assistant Secretary, of
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the Company, and delivered to the Trustee and containing the statements provided
for in Section 102. One of the officers signing an Officers' Certificate given
pursuant to Section 1018 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel,
who may be counsel for the Company, and who shall be acceptable to the Trustee,
and containing the statements provided for in Section 102.
"Original Securities" means all Securities other
than Exchange Securities.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securi-
-21-
ties or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company. The Trustee is hereby authorized by the Company to act as
a "Paying Agent" for the purposes of this Indenture, until such time as the
Company notifies the Trustee in writing that such authorization is revoked.
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Investment" means
(i) any Investment in a Joint Venture (including the purchase or
acquisition of any Capital Stock of a Joint Venture), provided the aggregate
amount of all outstanding Investments pursuant to this clause (i) in Joint
Ventures in which the Company owns, directly or indirectly, a less than 50%
interest shall not exceed $25 million,
(ii) any Investment in any Person as a result of which such Person
becomes a Restricted Subsidiary, or, subject to the proviso to clause (i) of
this definition, becomes a Joint Venture of the Company,
(iii) any Investment in Marketable Securities,
-22-
(iv) Investments in Permitted Interest Rate or Currency
Protection Agreements,
(v) Investments made as a result of the receipt of noncash
consideration from an Asset Disposition that was made pursuant to and in
compliance with Section 1013 of this Indenture and
(vi) other Investments in an aggregate amount not to exceed the
aggregate net proceeds received by the Company or any Restricted Subsidiary
after the date of this Indenture from the sale or liquidation of any
Unrestricted Subsidiary or any interest therein (except to the extent that any
such amount is included in the calculation of Consolidated Net Income).
"Permitted Liens" means
(a) Liens for taxes, assessments, governmental charges or claims which
are not yet delinquent or which are being contested in good faith by appropriate
proceedings, if a reserve or other appropriate provision, if any, as shall be
required in conformity with generally accepted accounting principles shall have
been made therefor;
(b) other Liens incidental to the conduct of the Company's and its
Restricted Subsidiaries' business or the ownership of its property and assets
not securing any Debt, and which do not in the aggregate materially detract from
the value of the Company's and its Restricted Subsidiaries' property or assets
when taken as a whole, or materially impair the use thereof in the operation of
its business;
(c) Liens with respect to assets of a Restricted Subsidiary granted by
such Restricted Subsidiary to the Company to secure Debt owing to the Company;
(d) pledges and deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
statutory obligations (including to secure government contracts);
(e) deposits made to secure the performance of tenders, bids, leases,
and other obligations of like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(f) zoning restrictions, servitudes, easements, rights-of-way,
restrictions and other similar charges or
-23-
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Company or
its Restricted Subsidiaries;
(g) Liens arising out of judgments or awards against the Company or any
Restricted Subsidiary with respect to which the Company or such Restricted
Subsidiary is prosecuting an appeal or proceeding for review and the Company or
such Restricted Subsidiary is maintaining adequate reserves in accordance with
generally accepted accounting principles;
(h) any interest or title of a lessor in the property
subject to any lease other than a Capital Lease; and
(i) any statutory warehousemen's, materialmen's or other similar Liens
for sums not then due and payable (or which, if due and payable, are being
contested in good faith and with respect to which adequate reserves are being
maintained to the extent required by generally accepted accounting principles).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof or any other entity.
"Predecessor Security" of any particular Security means every
previous Security issued before, and evidencing all or a portion of the same
debt as that evidenced by, such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Dividends" for any Person means for any period the
quotient determined by dividing the amount of dividends and distributions paid
or accrued (whether or not declared) on Preferred Stock of such Person during
such period calculated in accordance with generally accepted accounting
principles, by 1 minus the maximum statutory income tax rate then applicable to
the Company (expressed as a decimal).
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"Preferred Stock" of any Person means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Purchase Agreement" means the Purchase Agreement, dated as of
November 12, 1999, between the Company and the Purchasers, as such agreement may
be amended from time to time.
"Purchase Date" has the meaning set forth in the definition of
"Offer to Purchase" in this Section 101.
"Purchase Money Debt" means
(i) Acquired Debt Incurred in connection with the
acquisition of Telecommunications Assets and
(ii) Debt of the Company or of any Restricted Subsidiary of the Company
(including, without limitation, Debt represented by Bank Credit Agreements,
Capital Lease Obligations, Vendor Financing Facilities, mortgage financings and
purchase money obligations) Incurred for the purpose of financing all or any
part of the cost of construction, acquisition or improvement by the Company or
any Restricted Subsidiary of the Company or any Joint Venture of any
Telecommunications Assets of the Company, any Restricted Subsidiary of the
Company or any Joint Venture, and including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as the same may be amended, supplemented, modified or restated from
time to time.
"Purchasers" means Xxxxxxx, Xxxxx & Co., Xxxxxxx
Xxxxx Barney Inc., Credit Suisse First Boston Corporation,
TD Securities (USA) Inc., Barclays Capital Inc., Chase
Securities Inc., BancBoston Xxxxxxxxx Xxxxxxxx Inc., Banc of
America Securities LLC, Deutsche Bank Securities Inc., X.X.
Xxxxxx Securities Inc. and PNC Capital Markets, Inc.
"readily marketable cash equivalents" means (i) marketable
securities issued or directly and unconditionally guaranteed by the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States; (ii) marketable direct obligations issued by
any state of the United States of
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America or any political subdivision of any such state or any public
instrumentality thereof and, at the time of acquisition, having the highest
rating obtainable from either Standard & Poor's Rating Group or Xxxxx'x
Investors Service, Inc.; (iii) commercial paper maturing no more than 180 days
from the date of acquisition thereof and, at the time of acquisition, having a
rating of P-1 according to Xxxxx'x Investors Service, Inc., "A-1" or higher
according to Standard & Poor's Ratings Group or "A-1" or higher according to
Duff & Xxxxxx Credit Rating Co. (or such similar equivalent rating by at least
one "nationally recognized statistical rating organization" (as defined in Rule
436 under the Securities Act)); and (iv) certificates of deposit or bankers'
acceptance maturing within one year from the date of acquisition thereof issued
by any commercial bank organized under the laws of the United States of America
or any state thereof or the District of Columbia having unimpaired capital and
surplus of not less than $100,000,000.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of money
in respect of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables
of such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person relating
thereto or a disposition of defaulted Receivables for purpose of collection and
not as a financing arrangement.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and all
other Securities sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with their respective
Successor Securities.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 15 or November 15
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(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate
substantially in the form set forth in Annex A.
"Regulation S Global Security" has the meaning
specified in Section 201.
"Regulation S Legend" means a legend substantially in the form
of the legend required in the form of Security set forth in Section 202 to be
placed upon each Regulation S Security.
"Regulation S Securities" means all Securities
required pursuant to Section 305(c) to bear a Regulation S
Legend. Such term includes the Regulation S Global
Security.
"Related Person" of any Person means any other
Person directly or indirectly owning
(a) 10% or more of the Outstanding Common Equity of such Person (or, in
the case of a Person that is not a corporation, 10% or more of the equity
interest in such Person) or
(b) 10% or more of the combined voting power of the
Voting Stock of such Person.
"Resale Registration Statement" has the meaning
set forth in the Form of the Securities contained in
Section 202.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller 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
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respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Global Security" has the meaning
specified in Section 201.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the original issuance date of the Securities.
"Restricted Securities" means all Securities
required pursuant to Section 305(c) to bear any Restricted
Securities Legend. Such term includes the Restricted Global
Security.
"Restricted Securities Certificate" means a
certificate substantially in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms of the legends required in the form of
Security set forth in Section 202 to be placed upon each Restricted Security.
"Restricted Subsidiary" of the Company means any Subsidiary,
whether existing on or after the date of this Indenture, unless such Subsidiary
is an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities purchased by the
Purchasers from the Company pursuant to the Purchase Agreement, other than the
Regulation S Securities.
"Sale and Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person more than
365 days after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any person to
whom funds have been or are to be advanced by such lender or investor on the
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security of such property or asset. The stated maturity of such arrangement
shall be the date of the last payment of rent or any other amount due under such
arrangement prior to the first date on which such arrangement may be terminated
by the lessee without payment of a penalty.
"SEC Reports" has the meaning specified in
Section 704.
"Securities" means the Exchange Securities and the
Original Securities.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted
Securities Legend or a Regulation S Legend.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305(b).
"Significant Subsidiary" means a Restricted Subsidiary that is
a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest, as the case may be, is due and payable.
"Step-Down Date" has the meaning set forth in the
form of the Security contained in Section 202.
"Step-Up" has the meaning set forth in the form of
the Security contained in Section 202.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment in
full of the Securities to at least the following extent:
(i) no payments of principal of (or premium, if any) or interest on or
otherwise due in respect of such Debt may be permitted for so long as any
default in the payment of principal (or premium, if any) or interest on the
Securities exists;
(ii) in the event that any other default that with the passing of time
or the giving of notice, or both, would constitute an Event of Default exists
with respect to the Securities, upon notice by 25% or more in principal amount
of the Securities to the Trustee, the Trustee shall have the right to give
notice to the Company and the holders of such Debt (or trustees or agents
therefor) of a payment blockage, and thereafter no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
made for a period of 179 days from the date of such notice or for the period
until such default has been cured or waived or ceased to exist and any
acceleration of the Securities has been rescinded or annulled, whichever period
is shorter (which Debt may provide that
(A) no new period of payment blockage may be commenced by a
payment blockage notice unless and until 360 days have elapsed since the
effectiveness of the immediately prior notice,
(B) no nonpayment default that existed or was continuing on
the date of delivery of any payment blockage notice to such holders (or such
agents or trustees) shall be, or be made, the basis for a subsequent payment
blockage notice and
(C) failure of the Company to make payment on such Debt when
due or within any applicable grace period, whether or not on account of such
payment blockage provisions, shall constitute an event of default thereunder);
and
(iii) such Debt may not (x) provide for payments of principal of such
Debt at the stated maturity thereof or by way of a sinking fund applicable
thereto or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof by the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such Debt upon an event of
default thereunder), in each case prior to the final Stated Maturity of the
Securities or (y) permit redemption or other retirement (including pursuant to
an offer to purchase made by the Company) of such other Debt at the option of
the
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holder thereof prior to the final Stated Maturity of the Securities, other than
a redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon a change of control of the Company pursuant to provisions
substantially similar to those of Section 1016 (and which shall provide that
such Debt will not be repurchased pursuant to such provisions prior to the
Company's repurchase of the Securities required to be repurchased by the Company
pursuant to the provisions of Section 1016.
"Subsidiary" of any Person means
(i) a corporation more than 50% of the combined voting power of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or
(ii) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Telecommunications Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible, used
or intended for use in connection with a Telecommunications Business.
"Telecommunications Business" means the business
of
(i) transmitting, or providing services relating to the transmission
of, voice, video or data through owned or leased transmission facilities,
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(ii) creating, developing or marketing communications related network
equipment, software and other devices for use in a Telecommunication Business or
(iii) evaluating, participating or pursuing any other activity or
opportunity that is primarily related to those identified in (i) or (ii) above
and shall, in any event, include all businesses in which the Company or any of
its Subsidiaries are engaged on the Issue Date; PROVIDED that the determination
of what constitutes a Telecommunications Business shall be made in good faith by
the Board of Directors, which determination shall be conclusive.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" means
(1) any Subsidiary of the Company designated as such by the Board of
Directors as set forth below where
(a) neither the Company nor any of its other
Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or Guarantee
of, any Debt of such Subsidiary or any Subsidiary of such
Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any
Debt of such Subsidiary or any Subsidiary of such
Subsidiary, and
(b) no default with respect to any Debt of such Subsidiary or
any Subsidiary of such Subsidiary (including
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any right which the holders thereof may have to take enforcement action against
such Subsidiary) would permit (upon notice, lapse of time or both) any holder of
any other Debt of the Company and its Restricted Subsidiaries to declare a
default on such other Debt or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity and
(2) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary to be an Unrestricted Subsidiary unless
such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any
property of, any other Subsidiary of the Company which is not a Subsidiary of
the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary,
PROVIDED that either
(x) the Subsidiary to be so designated has total
assets of $1,000 or less or
(y) immediately after giving effect to such designation, the
Company could Incur at least $1.00 of additional Debt pursuant to the first
paragraph of Section 1007 and PROVIDED, FURTHER, that the Company could make a
Restricted Payment in an amount equal to the greater of the fair market value
and the book value of such Subsidiary pursuant to Section 1009 and such amount
is thereafter treated as a Restricted Payment for the purpose of calculating the
aggregate amount available for Restricted Payments thereunder. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, PROVIDED that if such Unrestricted Subsidiary has Debt outstanding
at such time, either
(a) immediately after giving effect to such
designation, the Company could Incur at least $1.00 of additional Debt pursuant
to the first paragraph of Section 1007 or
(b) the Company or such Restricted Subsidiary could
Incur such Debt hereunder (other than as Acquired Debt).
"Vendor Financing Facility" means any agreements between the
Company or a Restricted Subsidiary of the Company and one or more vendors or
lessors of equipment or other capital assets to the Company or any of its
Restricted Subsidiaries (or any affiliate of any such vendor or lessor)
providing financing for the acquisition by the Company or
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any such Restricted Subsidiary of equipment or other capital assets from any
such vendor or lessor.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly-Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person 99% or more of the outstanding Capital
Stock or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly-Owned
Restricted Subsidiaries of such Person or by such Person and one or more
Wholly-Owned Restricted Subsidiaries of such Person.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act and under this Indenture. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation
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upon which the statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate of an officer of the Company may be based,
insofar as it relates to legal matters, upon an opinion of counsel submitted
therewith, unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon which his
certificate is based is erroneous. Any opinion of counsel may be based, insofar
as it relates to factual matters, upon a certificate of an officer or officers
of the Company submitted therewith stating the information on which counsel is
relying, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
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SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing pursuant to this Section 104 may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities, PROVIDED that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; PROVIDED that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice,
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declaration, request or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if
delivered in writing to the Trustee at its Corporate
Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the Company at the address of its
principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if (i) in the case of a Global Security, in writing by
facsimile and/or by overnight mail to the Depositary, and (ii) in the case of
securities other than Global Securities, in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. APPLICATION OF TRUST INDENTURE ACT.
The Trust Indenture Act shall apply as a matter of contract to
this Indenture for purposes of interpretation, construction and defining the
rights and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Purchase Date or at the Stated Maturity, PROVIDED that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of
authentication thereof shall be in substantially the forms set forth in this
Article, with such appropriate legends, insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
-41-
Upon their original issuance, Rule 144A Securities shall be
issued in the form of one or more Global Securities registered in the name of
the Depositary or its nominee and deposited with the Trustee, as custodian for
the Depositary, for credit by the Depositary to the respective accounts of
beneficial owners of the Securities represented thereby (or such other accounts
as they may direct). Such Global Securities, together with their Successor
Securities which are Global Securities other than the Regulation S Global
Security, are collectively herein called the "Restricted Global Security". Upon
their original issuance, Regulation S Securities shall be issued in the form of
one or more Global Securities registered in the name of the Depositary, or its
nominee and deposited with the Trustee, as custodian for the Depositary, for
credit to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct), PROVIDED that
upon such deposit all such Securities shall be credited to or through accounts
maintained at the Depositary by or on behalf of Euroclear or Cedel. Such Global
Securities, together with their Successor Securities which are Global Securities
other than the Restricted Global Security, are collectively herein called the
"Regulation S Global Security".
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
In certain cases described elsewhere herein, the legends set
forth in Section 202 may be omitted from Securities issued hereunder.
SECTION 202. FORM OF FACE OF SECURITY.
[If Restricted Securities, then insert -- THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X)
PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT
ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
-42-
TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS
NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS NOTE REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (O)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.]
[If a Regulation S Security, then insert -- THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS REGISTERED UNDER
THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
[If the Security is a Global Security, insert the
legends required by Section 204 of the Indenture]
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTIONS 1272, 1273 AND 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS 55.257% OF ITS
PRINCIPAL AMOUNT, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $447.43 PER $1,000 OF
STATED FACE AMOUNT, THE ISSUE DATE IS NOVEMBER 17, 1999 AND THE YIELD TO
MATURITY IS 12 1/8%.
-43-
NEXTLINK Communications, Inc.
12 1/8% SENIOR DISCOUNT NOTES DUE 2009
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 65333H AN 3]
[IF ANY REGULATION S SECURITY - CUSIP NO. U6500E AE 8]
[IF REGULATION S GLOBAL SECURITY - ISIN NO. USU6500EAE87]
No. ______ $_______________
NEXTLINK Communications, Inc., a corporation organized under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________ Dollars [if this Security is a Global Security, then
insert: (which principal amount may from time to time be increased or decreased
to such other principal amounts (which, taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $455,000,000 in
the aggregate at any time) by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture)] on December 1, 2009,
and to pay interest thereon from December 1, 2004 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on June 1 and December 1 in each year, commencing June 1, 2005, at
the rate of 12 1/8% per annum until the principal hereof is paid or made
available for payment. [If Original Securities, then insert: PROVIDED, HOWEVER,
that if (i) the Company has not filed a registration statement (the "Exchange
Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), registering a security substantially identical to this
Security (except that such Security will not contain terms with respect to the
Additional Interest payments described below or transfer restrictions) pursuant
to an exchange offer (the "Exchange Offer") (or, in lieu thereof, a registration
statement registering this Security for resale (a "Resale Registration
Statement")) by February 15, 2000, or (ii) the Exchange Registration Statement
relating to the Exchange Offer or, if applicable, the Resale Registration
Statement has not become or been declared effective by March 16, 2000, or (iii)
the Exchange Offer has not been completed within 45 days after the date on which
the Exchange Registration Statement has become or been declared effective
initially (if the Exchange Offer is then required to be made pursuant to the
Exchange and Registration Rights Agreement (the "Exchange and Registration
Rights Agreement"), dated as of November 17, 1999, by and
-44-
between the Company, the Purchasers (as defined therein) and the Holders from
time to time of the Securities) or (iv) either the Exchange Registration
Statement or, if applicable, the Resale Registration Statement is filed and
declared effective (except as specifically permitted therein) but shall
thereafter cease to be effective without being succeeded promptly by an
additional registration statement filed and declared effective, in each case (i)
through (iv) upon the terms and conditions set forth in the Exchange and
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then interest will accrue (in addition
to the original issue discount and any stated interest on the Securities) (the
"Step-Up") at a rate of 0.5% per annum, determined daily, on the principal
amount of the Securities, for the period from the occurrence of the Registration
Default until such time (the "Step-Down Date") as no Registration Default is in
effect and, PROVIDED, FURTHER, that if either the Exchange Offer has not been
consummated or, if applicable, the Resale Registration Statement has not become
or been declared effective, in each case by April 30, 2000, then the per annum
rate of such Additional Interest shall increase (the "Subsequent Step-Up") by an
additional 0.25% per annum for each subsequent 90-day period (provided that the
Step-Up and all Subsequent Step-Up interest rates shall not exceed 1.0% per
annum in the aggregate) and Additional Interest will be payable at such
increased rate until such time (the "Subsequent Step Down Date") as the Company
consummates the Exchange Offer or, if applicable, the Resale Registration
Statement becomes or has been declared effective (after which such interest rate
will be restored to its initial rate). Interest accruing as a result of the
Step-Up or the Subsequent Step-Up (which shall be computed on the basis of a
365-day year) is referred to herein as "Additional Interest." Accrued Additional
Interest, if any, shall be paid semi-annually on June 1 and December 1 in each
year; and the amount of accrued Additional Interest shall be determined on the
basis of the number of days actually elapsed. Any accrued and unpaid interest
(including Additional Interest) on this Security upon the issuance of an
Exchange Security (as defined in the Indenture) in exchange for this Security
shall cease to be payable to the Holder hereof but such accrued and unpaid
interest (including Additional Interest) shall be payable on the next Interest
Payment Date for such Exchange Security to the Holder thereof on the related
Regular Record Date.] The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be May 15 or November 15 (whether or
-45-
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
The principal of this Security shall not accrue interest until
December 1, 2004, except in the case of a default in payment of principal and
premium, if any, upon acceleration or redemption, in which case interest shall
be payable pursuant to the preceding paragraph on such overdue principal (and
premium, if any), such interest shall be payable on demand and, if not so paid
on demand, such interest shall itself bear interest at the rate of 12 1/8% per
annum (to the extent that the payment of such interest shall be legally
enforceable), and shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest on unpaid interest shall also be payable on demand.
If this Security is issued in the form of a Global Security,
payments of the principal of (and premium, if any) and interest on this Security
shall be made in immediately available funds to the Depositary. If this Security
is issued in certificated form, payment of the principal of (and premium, if
any) and interest on this Security will be made at the corporate trust office of
the Trustee and at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, New York, and at any
other office or agency maintained by the Company for such purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
-46-
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: November 17, 1999.
NEXTLINK Communications, Inc.
By______________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities
of the Company designated as its 12 1/8% Senior Discount Notes Due 2009 (the
"Securities") issued under an Indenture, dated as of November 17, 1999 (herein
called the "Indenture"), between the Company and U.S. Trust Company of Texas, as
trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture). The Securities are limited in aggregate principal amount
to $455,000,000. Reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice by mail to each Holder of Securities to be
redeemed at such Holder's address appearing in the Security Register, in amounts
of $1,000 or an integral multiple of $1,000, at any time on or after December 1,
2004 and prior to maturity, as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount) plus accrued and unpaid interest to but excluding
-47-
the Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment that is on or
prior to the Redemption Date), if redeemed during the 12-month period beginning
December 1 of each of the years indicated below:
Redemption
Year Price
---- ------
2004 106.063%
2005 104.042%
2006 102.021%
and thereafter at a Redemption Price equal to 100.000% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Securities are further subject to redemption on or prior
to December 1, 2002 only in the event that on or before December 1, 2002 the
Company receives net proceeds from a sale of its Common Equity, in which case
the Company may, at its option, use all or a portion of any such net proceeds to
redeem Securities in a principal amount of up to 33 1/3% of the Accreted Value
of the Securities at a Redemption Price of 112.125% of the Accreted Value of the
Securities to be redeemed to but excluding the Redemption Date; PROVIDED,
HOWEVER, that Securities in an amount equal to at least 66 2/3% of the Accreted
Value of the Securities remain Outstanding after such redemption and such
redemption occurs on a Redemption Date within 90 days of any such sale of the
Company's Common Equity and upon not less than 30 nor more than 60 days' notice
by mail to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register. The Company may only redeem the Securities
in amounts of $1,000 or an integral multiple of $1,000.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Securities do not have the benefit of any sinking fund
obligations.
-48-
The Indenture provides that, subject to certain conditions, if
(i) a Change of Control occurs or (ii) certain Net Available Proceeds are
available to the Company as a result of any Asset Disposition, the Company shall
be required to make an Offer to Purchase for all or a specified portion of the
Securities.
[If not a Global Security -- In the event of redemption or
purchase pursuant to an Offer to Purchase of this Security in part only, a new
Security or Securities of like tenor for the unredeemed or unpurchased portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[If a Global Security insert -- In the event of a deposit or
withdrawal of an interest in this Security (including upon an exchange,
transfer, redemption or repurchase of this Security in part only) effected in
accordance with the Applicable Procedures, the Security Registrar, upon receipt
of notice of such event from the Depositary's custodian for this Security, shall
make an adjustment on its records to reflect an increase or decrease of the
Outstanding principal amount of this Security resulting from such deposit or
withdrawal, as the case may be.]
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security, or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
Unless the context otherwise requires, the Original Securities
(as defined in the Indenture) and the Exchange Securities (as defined in the
Indenture) shall constitute one series for all purposes under the Indenture,
including without limitation, amendments, waivers, redemptions and Offers to
Purchase.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities
-49-
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
at the time Outstanding, on behalf of the Holders of all the Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Outstanding Securities a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and like tenor and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
-50-
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like tenor and aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
Interest [If an Original Security, then insert: (other than
Additional Interest)] on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its
entirety by the Company pursuant to Section 1013 or 1016 of the Indenture, check
the box:
/ /
-51-
If you want to elect to have only a part of this Security
purchased by the Company pursuant to Section 1013 or 1016 of the Indenture,
state the amount: $___________
Dated:________________ Your Signature __________________
(Sign exactly as name
appears on the other side of
this Security)
Signature Guarantee:________________________________________
Notice: Signature(s) must be guaranteed by
an "eligible guarantor institution" meeting
the requirements of the Trustee, which
requirements will include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Trustee in addition to, or
in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
SECTION 204. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL
SECURITY.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
[If a Global Security, insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security to be held by the Depository Trust
Company, insert -- UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
-52-
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
U.S. Trust Company of Texas,
as Trustee
By ____________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $455,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1013 or 1016.
The Company may issue Exchange Securities from time to time
pursuant to an Exchange Offer or otherwise, in each case pursuant to a Board
Resolution, subject to Section 303, included in an Officers' Certificate
delivered to the Trustee, in authorized denominations in exchange for a like
principal amount of Original Securities. Upon any such exchange the Original
Securities shall be canceled in accordance with Section 309 and shall no longer
be deemed Outstanding for any purpose. In no event shall the aggregate principal
amount of Original Securities and Exchange Securities Outstanding exceed
$455,000,000.
-53-
The Securities shall be known and designated as the "12 1/8%
Senior Discount Notes due 2009" of the Company. The Stated Maturity of the
Securities shall be December 1, 2009. The Securities shall bear interest at the
rate of 12 1/8% per annum, from December 1, 2004 or from the most recent
Interest Payment Date thereafter to which interest has been paid or duly
provided for, as the case may be, payable semi-annually on June 1 and December
1, commencing June 1, 2005, until the principal thereof is paid or made
available for payment; PROVIDED, HOWEVER, with respect to Original Securities,
if there has been a Registration Default, a Step-Up will occur and the Original
Securities will from then bear Additional Interest until the Step-Down Date and,
if either the Exchange Offer has not been consummated or, if applicable, the
Resale Registration Statement has not become or been declared effective, in each
case, by April 30, 2000, a Subsequent Step-Up will occur and the Original
Securities will from then bear Additional Interest until the Subsequent
Step-Down Date. Accrued Additional Interest, if any, shall be paid in cash in
arrears semi-annually on May 15 and November 15 in each year, and the amount of
accrued Additional Interest shall be determined on the basis of the number of
days actually elapsed. In connection with the cash payment of any Additional
Interest, the Company shall notify the Trustee (the "Additional Interest
Notice") on or before the later to occur of (i) the Regular Record Date
preceding such payment of any Additional Interest, and (ii) the date on which
any such Additional Interest begins to accrue, of the amount of Additional
Interest to be paid by the Company on the next Interest Payment Date. In the
event of the occurrence of a Step-Down Date during the period between the date
on which the Additional Interest Notice is given and the next Interest Payment
Date, the Company shall so notify the Trustee and shall provide the Trustee with
the revised amount of Additional Interest to be paid by the Company on such
Interest Payment Date.
In the case of a default in payment of principal and premium,
if any, upon acceleration or redemption, interest shall be payable pursuant to
the preceding paragraph on such overdue principal (and premium, if any), such
interest shall be payable on demand and, if not so paid on demand, such interest
shall itself bear interest at the rate of 12.125% per annum (to the extent that
the payment of such interest shall be legally enforceable), and shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest on unpaid interest shall
also be payable on demand.
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If this Security is issued in the form of a Global Security,
payments of the principal of (and premium, if any) and interest on this Security
shall be made in immediately available funds to the Depositary. If the
Securities are issued in certificated form, the principal of and premium, if
any, and interest on the Securities shall be payable at the corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York, New
York, maintained for such purpose and at any other office or agency maintained
by the Company for such purpose; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 1013 and 1016.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subject to defeasance at the option of
the Company as provided in Article Twelve.
Unless the context otherwise requires, the Original Securities
and the Exchange Securities shall constitute one series for all purposes under
the Indenture, including without limitation, amendments, waivers, redemptions
and Offers to Purchase.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY
AND DATING.
The Securities shall be executed on behalf of the Company by
its Chief Executive Officer, its President, its Executive Vice President or one
of its Vice Presidents and attested by its Secretary or Assistant Secretary. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
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officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a Registration
Statement under the Securities Act with respect thereto, the Company may deliver
Exchange Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Exchange Securities and a like principal amount of Original Securities for
cancellation in accordance with Section 309 of this Indenture, and the Trustee
in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Exchange Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that such Exchange Securities have been duly and validly
issued in accordance with the terms of the Indenture, and are entitled
to all the rights and benefits set forth herein; and
(b) that the issuance of the Exchange Securities in exchange
for the Original Securities has been effected in compliance with the
Securities Act of 1933, as amended.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence,
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and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company
may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like tenor and principal amount
of definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as they may prescribe, the Company shall provide
for the registration of Securities and of transfers and exchanges of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers and exchanges of Securities as herein
provided. Such Security Register shall distinguish between Original Securities
and Exchange Securities.
Subject to the other provisions of this Indenture
regarding restrictions on transfer, upon surrender for
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registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 1002 for such purpose in accordance with the
terms hereof, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like tenor and aggregate
principal amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder and subject to the other
provisions of this Section 305, Securities may be exchanged for other Securities
of any authorized denominations and of a like tenor and aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and (subject to the provisions in the Original Securities
regarding the payment of Additional Interest) entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 305, 906 or 1108 or in
accordance with any Offer to Purchase pursuant to Section 1013 or 1016 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so
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selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) RESTRICTED GLOBAL SECURITY TO REGULATION S
GLOBAL SECURITY. If the owner of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Regulation S Global
Security, such transfer may be effected only in accordance with the provisions
of this Clause (b)(i) and Clause (b)(iv) below and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A) an order
given by the Depositary or its authorized representative directing that a
beneficial interest in the Regulation S Global Security in a specified principal
amount be credited to a specified Agent Member's account and that a beneficial
interest in the Restricted Global Security in an equal principal amount be
debited from another specified Agent Member's account and (B) a Regulation S
Certificate, satisfactory to the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Security or his attorney duly
authorized in writing, then the Trustee, as Security Registrar but subject to
Clause (b)(vii) below, shall reduce the principal amount of the Restricted
Global Security and increase the principal amount of the Regulation S Global
Security by such specified principal amount.
(ii) REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY. If the owner of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected only in accordance
with this Clause (b)(ii) and subject to the Applicable Procedures. Upon receipt
by the Trustee, as Security Registrar, of (A) an order given by the Depositary
or its authorized representative directing that a beneficial interest in the
Restricted Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited from
another specified Agent Member's account and (B) if such transfer is to occur
during the Restricted Period, a Restricted Securities Certificate, satisfactory
to the
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Trustee and duly executed by the owner of such beneficial interest in the
Regulation S Global Security or his attorney duly authorized in writing, then
the Trustee, as Security Registrar, shall reduce the principal amount of the
Regulation S Global Security and increase the principal amount of the Restricted
Global Security by such specified principal amount.
(iii) NON-GLOBAL SECURITY TO NON-GLOBAL
SECURITY. A Security that is not a Global Security may be transferred, in whole
or in part, to a Person who takes delivery in the form of another Security that
is not a Global Security as provided in Section 305(a), PROVIDED that, if the
Security to be transferred in whole or in part is a Restricted Security, or is a
Regulation S Security and the transfer is to occur during the Restricted Period,
then the Trustee shall have received (A) a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by the transferor Holder or his
attorney duly authorized in writing, in which case the transferee Holder shall
take delivery in the form of a Restricted Security, or (B) a Regulation S
Certificate, satisfactory to the Trustee and duly executed by the transferor
Holder or his attorney duly authorized in writing, in which case the transferee
Holder shall take delivery in the form of a Regulation S Security (subject in
every case to Section 305(c)).
(iv) REGULATION S GLOBAL SECURITY TO BE HELD
THROUGH EUROCLEAR OR CEDEL DURING RESTRICTED PERIOD. The Company shall use its
best efforts to cause the Depositary to ensure that, until the expiration of the
Restricted Period, beneficial interests in the Regulation S Global Security may
be held only in or through accounts maintained at the Depositary by Euroclear or
Cedel (or by Agent Members acting for the account thereof), and no person shall
be entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; PROVIDED that
this Clause (b)(iv) shall not prohibit any transfer or exchange of such an
interest in accordance with Clause (b)(ii) above.
(v) EXCHANGES OF BOOK-ENTRY SECURITIES FOR
CERTIFICATED SECURITIES. A beneficial interest in a Global Security may not be
exchanged for a Security in certificated form unless (i) DTC (x) notifies the
Company that it is unwilling or unable to continue as Depositary for the Global
Security or (y) has ceased to be a clearing agency registered under the Exchange
Act and in either case the Company thereupon fails to appoint a successor
Depositary, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of the Securities in certificated form or
(iii) there shall have occurred and be
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continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default with respect to the Securities. In all
cases, certificated Securities delivered in exchange for any Global Security or
beneficial interests therein will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the Depositary (in
accordance with its customary procedures). Any certificated Security issued in
exchange for an interest in a Global Security will bear the legend restricting
transfers that is borne by such Global Security. Any such exchange will be
effected through the DWAC System and an appropriate adjustment will be made in
the records of the Security Registrar to reflect a decrease in the principal
amount of the relevant Global Security.
(c) SECURITIES ACT LEGENDS. Rule 144A Securities and their
Successor Securities shall bear a Restricted Securities Legend, and the
Regulation S Securities and their Successor Securities shall bear a Regulation S
Legend, subject to the following:
(i) subject to the following Clauses of this Section
305(c), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof
shall bear the Securities Act Legend borne by such Global Security
while represented thereby;
(ii) subject to the following Clauses of this Section
305(c), a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Securities
Act Legend borne by such other Security, PROVIDED that, if such new
Security is required pursuant to Section 305(b)(v) or (vi) to be issued
in the form of a Restricted Security, it shall bear a Restricted
Securities Legend and, if such new Security is so required to be issued
in the form of a Regulation S Security, it shall bear a Regulation S
Legend;
(iii) Registered Securities shall not bear a Securities
Act Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received
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an Unrestricted Securities Certificate, satisfactory to the Trustee and
duly executed by the Holder of such legended Security or his attorney
duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new
Security in exchange for or in lieu of such other Security as provided
in this Article Three;
(v) a new Security which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof which bears such a
legend if, in the Company's judgment, placing such a legend upon such
new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 305(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Restricted
Securities Legend in exchange for such Successor Security as provided
in this Article Three.
SECTION 306. MUTILATED, DESTROYED, LOST AND
STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in the discretion
of the Company may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST
RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest (including Additional Interest) on any Security
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall (a) bear
interest at the rate per annum stated in the form of Security included herein
(to the extent that the payment of such interest shall be legally enforceable),
and (b) forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Prede-
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cessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of
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any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer, exchange or pursuant to any Offer to Purchase pursuant
to Section 1013 or 1016 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of in accordance with its standard procedures
or as directed by a Company Order; PROVIDED, HOWEVER, that the Trustee shall not
be required to destroy such Securities.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months, except that Additional Interest shall be
computed on the basis of a 365-day year.
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SECTION 311. CUSIP AND ISIN NUMBERS.
The Company in issuing Securities may use "CUSIP" and "ISIN"
numbers (if then generally in use) in addition to serial numbers; if so, the
Trustee shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers
in notices of redemption and repurchase as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such CUSIP and ISIN numbers either as printed on the Securities
or as contained in any notice of a redemption or repurchase and that reliance
may be placed only on the serial or other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission of such CUSIP and ISIN numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect as to all
outstanding Securities (except as to (i) rights of registration of transfer and
exchange and the Company's right of optional redemption, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of holders of Securities to receive payment of principal of and premium,
if any, and interest on the Securities, (iv) rights, obligations and immunities
of the Trustee under the Indenture and (v) rights of the holders of the
Securities as beneficiaries of the Indenture with respect to any property
deposited with the Trustee payable to all or any of them), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) the Company will have paid or caused to be paid
the principal of and premium, if any, and interest on the
Securities as and when the same will have become due and
payable; or
(B) all outstanding Securities (except lost, stolen
or destroyed Securities which have been replaced or paid) have
been delivered to the Trustee for cancellation;
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and the Company, in the case of (A) above, has deposited or
caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal of and premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with; and
(4) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture, (i) the
obligations of the Company to the Trustee under Section 607, (ii) substitution
of apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of holders of Securities to receive payment of principal of and premium,
if any, and interest on the Securities, (iv) rights, obligations and immunities
of the Trustee under this Indenture (including, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003), and (v) rights of holders of the Securities as beneficiaries
of this Indenture with respect to any property deposited with the Trustee
payable to all or any of them, shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest
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for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security when due; or
(3) default in the payment of principal and interest upon any
Security required to be purchased pursuant to an Offer to Purchase
pursuant to Sections 1013 or 1016 when due and payable; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or in any Security (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of Debt by the Company or any Significant
Subsidiary of the Company or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by
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which there may be secured or evidenced any Debt of such type by the
Company or any such Significant Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $10
million, whether such Debt now exists or shall hereafter be created,
which default or defaults shall constitute a failure to pay such Debt
when due at the final maturity thereof, or shall have resulted in such
Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable; or
(7) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
Significant Subsidiary in an aggregate amount in excess of $10 million
by a court or courts of competent jurisdiction, which judgments remain
undischarged or unstayed for a period (during which execution shall not
be effectively stayed) of 45 days after the right to appeal all such
judgments has expired; or
(8) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or
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State bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Significant Subsidiary or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or any Significant Subsidiary in furtherance of
any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Section 501(8) or (9) with respect to the Company) occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities may declare
the Default Amount of all the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such Default Amount and any accrued interest, together
with all other amounts due under this Indenture, shall become immediately due
and payable. If an Event of Default specified in Section 501(8) or (9) with
respect to the Company occurs, the Default Amount of and any accrued interest on
the Securities then Outstanding, together with all other amounts due under this
Indenture, shall ipso facto become immediately due and payable without any
declaration or other Act on the part of the Trustee or any Holder.
The "Default Amount" in respect of any particular Security as
of any particular date of acceleration on or before December 1, 2004 shall equal
the Accreted Value of the Security on such date and as of any particular date of
acceleration thereafter, shall equal the principal amount of the Security plus
accrued and unpaid interest to such date.
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At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due based on
acceleration has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an
Offer to Purchase made by the Company) and interest thereon at
the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the applicable rate
borne by the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
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(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses incurred by the Trustee
under this Indenture, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys, securities or other property payable or deliverable
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upon the exchange of the Securities or upon any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607; and
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SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
The Trustee, upon prior written notice to the Company, may fix a record date and
payment date for any payment to the Holders pursuant to this Section 506.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested,
provided to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer and, if requested, provision of indemnity has failed
to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture,
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except in the manner herein provided and for the equal and ratable benefit of
all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or, in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability
(as determined in the sole discretion of the Trustee), and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
The Trustee may refuse, however, to follow any direction that the Trustee, in
its sole discretion, determines may be unduly prejudicial to the rights of
another Holder or that may subject the Trustee to any liability or expense if
the Trustee determines, in its sole discretion, that it lacks indemnification
against such loss or expense.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities by written notice to the Trustee waive any past default hereunder and
its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been
made by the Company), or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected or
(3) arising from failure to purchase any Security tendered
pursuant to Sections 1013 and 1016.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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 Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
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ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any Default
hereunder as and to the extent provided by the Trust Indenture Act, unless such
Default has been cured or waived; PROVIDED, HOWEVER, that in the case of any
Default of the character specified in Section 501(5), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction reasonably
satisfactory to the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith which the Trustee reasonably
believed to have been authorized or within its rights or powers.
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SECTION 604. NOT RESPONSIBLE FOR RECITALS
OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar (if
other than the Trustee) or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the reasonable
compensation, expenses and disbursements of its agents, accountants,
experts and counsel) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Company (including, without
limitation, this Section 607) and of defending itself against any claim
(whether asserted by any Holder or the Company) or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The provisions of this Section 607 shall survive any
termination of this Indenture and the resignation or removal of the
Trustee.
As security for the performance of the obligations of the
Company under this Section 607, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of any
amounts due under this Section 607 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Securities may be so
subordinated).
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(8) or (9) occurs, the expenses and the
compensation for such services are intended to constitute expenses of
administration under Title 11, U.S. Code, or any similar Federal state or
foreign law for the relief of debtors.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, Xxx Xxxx xx Xxx
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Xxxx, Xxx Xxxx. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611, at which time the retiring Trustee shall be fully discharged from
its obligations hereunder.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
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control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by Board Resolution, may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee under Section 607, execute and deliver an
instrument transferring to such successor Trustee all the
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rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST THE COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated
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shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the
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manner provided in Section 106 to all Holders of Securities. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the
within-mentioned Indenture.
United States Trust Company of New York,
AS TRUSTEE
By......................................,
AS AUTHENTICATING AGENT
By......................................
AUTHORIZED SIGNATORY
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and the Company
SECTION 701. COMPANY TO FURNISH TRUSTEE
NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by
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the Company of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is
furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee or any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
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SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act and in the manner set
forth in Section 1017; PROVIDED that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act ("SEC Reports") shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. In the event the
Company shall cease to be required to file SEC Reports pursuant to the Exchange
Act, the Company will nonetheless continue to file such reports with the
Commission (unless the Commission will not accept such a filing) and the Trustee
and to furnish copies of such SEC Reports to the Holders of Securities at the
time the Company is required to file such reports with the Trustee and will make
such information available to investors who request it in writing.
SECTION 705. OFFICERS' CERTIFICATE WITH RESPECT
TO CHANGE IN INTEREST RATES.
Within five days after any Step-Up, Subsequent Step-Up,
Step-Down Date or Subsequent Step-Down Date, the Company shall deliver an
Officers' Certificate to the Trustee stating the new interest rate and the date
on which it became effective.
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. MERGERS, CONSOLIDATIONS AND CERTAIN
SALES OF ASSETS.
(a) The Company may not, in a single transaction or a series
of related transactions, (i) consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Company (other
than a consolidation or merger of a Wholly-Owned Restricted Subsidiary organized
under the laws of a State of the United States into the Company), or (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of all or
substantially all of its assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries taken as a whole and provided that the
creation of a Lien on or in any of its assets shall not in and of itself
constitute the
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transfer, sale, lease or disposition of the assets subject to the Lien), unless:
(1) in a transaction in which the Company does not survive or in which the
Company sells, leases or otherwise disposes of all or substantially all of its
assets to any other Person, the successor entity to the Company shall be a
corporation organized under the laws of the United States of America or any
State thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under this
Indenture; (2) immediately after giving pro forma effect to such transaction as
if such transaction had occurred at the beginning of the last full fiscal
quarter immediately prior to the consummation of such transaction with the
appropriate adjustments with respect to the transaction being included in such
pro forma calculation and treating any Debt which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been Incurred
by the Company or such Subsidiary at the time of the transaction, no Default or
Event of Default shall have occurred and be continuing; (3) immediately after
giving effect to such transaction, the Consolidated Net Worth of the Company (or
other successor entity to the Company) is equal to or greater than that of the
Company immediately prior to the transaction; (4) if, as a result of any such
transaction, property or assets of the Company would become subject to a Lien
prohibited by the provisions of Section 1011, the Company or the successor
entity to the Company shall have secured the Securities as required by Section
1011;(5) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each in form and substance satisfactory to the Trustee
stating that such consolidation, merger, conveyance, transfer, lease or
acquisition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with, and, with respect to such Officer's Certificate, setting
forth the manner of determination of the Consolidated Net Worth in accordance
with Clause (3) of Section 801, of the Company or, if applicable, of the
Successor Company as required pursuant to the foregoing.
(b) In the event of any transaction (other than a lease)
described in and complying with the immediately preceding paragraph in which the
Company is not the surviving Person and the surviving Person assumes all the
obligations of the Company under the Securities and this Indenture pursuant to a
supplemental indenture, such surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company, and the
Company will be discharged from its obligations under
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this Indenture and the Securities; PROVIDED that solely for the purpose of
calculating amounts under Section 1009(3), any such surviving Person shall only
be deemed to have succeeded to and be substituted for the Company with respect
to the period subsequent to the effective time of such transaction, and the
Company (before giving effect to such transaction) shall be deemed to be the
"Company" for such purposes for all prior periods.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company with or into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES
WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1011 or otherwise; or
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(4) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to comply with any
requirement of the Commission in order to effect qualification of this
Indenture under the Trust Indenture Act in connection with the issuance
of Exchange Securities or thereafter to maintain the qualification of
this Indenture under the Trust Indenture Act;
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, PROVIDED that such action
pursuant to this Clause (5) shall not adversely affect the legal rights
of the Holders; or
(6) to provide for uncertificated Securities in addition to or
in place of certificated Securities.
SECTION 902. SUPPLEMENTAL INDENTURES
WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, and consistent with Section 513, the
Company, when authorized by Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
thereon, or change the place of payment where, or the coin or currency
in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or, in the case of an
Offer to Purchase which has been made, on or after the applicable
Purchase Date, or
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(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1019, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Section 1013 or 1016 and until the Expiration
Date of such Offer to Purchase, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner materially adverse
to such Holder.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES
TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and
premium, if any, and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will 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, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York, New York) where the Securities 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 in the
Borough of Manhattan, The City of New York, New York for such purposes. The
Company will 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.
SECTION 1003. MONEY FOR SECURITY PAYMENTS
TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act. As provided in
Section 504, upon any bankruptcy or reorganization proceeding relative to the
Company, the Trustee shall serve as the Paying Agent for the Securities.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee in writing of its action or failure so to act. As
provided in Section 504, upon any bankruptcy or reorganization proceeding
relative to the Company the Trustee shall serve as the Paying Agent for the
Securities.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of
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the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights
and obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Security 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 the Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publi-
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cation, any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary, to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined in the good faith judgment of the Board of
Directors evidenced by a Board Resolution, desirable in the conduct of its
business or, in the case of the Company, the business of any Subsidiary, and not
disadvantageous in any material respect to the Holders.
The Company shall, and shall cause the Subsidiaries of the
Company to, keep at all times all of their properties which are of an insurable
nature insured against loss or damage with insurers believed by the Company to
be responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
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SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent,
(1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiaries of the Company or upon the income,
profits or property of the Company or any Subsidiaries, and
(2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiaries of the Company; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. LIMITATION ON CONSOLIDATED DEBT.
The Company may not, and may not permit any Restricted
Subsidiary of the Company to, Incur any Debt unless either:
(a) the ratio of:
(i) the aggregate consolidated principal amount of Debt
of the Company outstanding as of the most recent available quarterly or
annual balance sheet, after giving pro forma effect to the Incurrence
of such Debt and any other Debt Incurred since such balance sheet date
and the receipt and application of the proceeds thereof
to
(ii) Consolidated Cash Flow Available for Fixed Charges
for the four full fiscal quarters next preceding the Incurrence of such
Debt for which consolidated financial statements are available,
determined on a pro forma basis as if
(x) any such Debt had been Incurred and the proceeds
thereof had been applied at the beginning of such four fiscal
quarters;
(y) the net income (or loss) for such period of any
Person or related to any assets disposed of by the Company or
a Restricted Subsidiary of
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the Company prior to the end of such period had been excluded
from Consolidated Net Income; and
(z) the net income (or loss) for such period of any
Person or related to any assets acquired by the Company or any
Restricted Subsidiary prior to the end of such period had been
included in Consolidated Net Income,
would be less than 5.5 to 1 for such four-quarter periods ending on or prior to
December 31, 1999 and 5.0 to 1 for such periods ending thereafter;
or
(b) the Company's Consolidated Capital Ratio as of the most recent
available quarterly or annual balance sheet, after giving pro forma effect to
the Incurrence of such Debt, any issuance of Capital Stock (other than
Disqualified Stock) since such balance sheet date, any increase in paid
in-capital (other than in respect of Disqualified Stock) since such balance
sheet date and the Incurrence of any other Debt since such balance sheet date
and the receipt and application of the proceeds thereof, is less than 2.0 to 1.
Notwithstanding the foregoing limitation, the Company and any
Restricted Subsidiary may Incur the following:
(i) Debt under any one or more Bank Credit Agreements
or Vendor Financing Facilities in an aggregate principal amount at any
one time not to
exceed the greater of:
(x) $250 million and
(y) 85% of the Eligible Receivables, and any renewal,
extension, refinancing or refunding thereof in an amount
which, together with any principal amount remaining
outstanding or available under all Bank Credit Agreements and
Vendor Financing Facilities of the Company and its Restricted
Subsidiaries, plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms
of any Bank Credit Agreement so refinanced plus the amount of
expenses incurred in connection with such refinancing, does
not exceed the aggregate principal amount outstanding or
available under all such Bank Credit Agreements and Vendor
Financing Facilities of the Company and its Restricted
Subsidiaries immediately prior to such renewal, extension,
refinancing or refunding;
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(ii) Purchase Money Debt Incurred to finance the
construction, acquisition or improvement of Telecommunications Assets,
PROVIDED that the net proceeds of such Purchase Money Debt do not
exceed 100% of the cost of construction, acquisition or improvement
price of the applicable Telecommunications Assets;
(iii) Debt owed by the Company to any Restricted
Subsidiary of the Company or Debt owed by a Restricted Subsidiary of
the Company to the Company or a Restricted Subsidiary of the Company;
PROVIDED, HOWEVER, that upon either
(x) the transfer or other disposition by such
Restricted Subsidiary or the Company of any Debt so permitted
to a Person other than the Company or another Restricted
Subsidiary of the Company or
(y) the issuance (other than directors' qualifying
shares), sale, lease, transfer or other disposition of shares
of Capital Stock (including by consolidation or merger) of
such Restricted Subsidiary as a result of which the obligor of
such Debt ceases to be a Restricted Subsidiary, the provisions
of this clause (iii) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been Incurred at
the time of such transfer or other disposition;
(iv) Debt Incurred to renew, extend, refinance or refund
(each, a "refinancing") Debt outstanding at the date of this Indenture
or Incurred pursuant to the preceding paragraph or clause (ii) of this
paragraph or the Securities in an aggregate principal amount not to
exceed the aggregate principal amount of and accrued interest on the
Debt so refinanced plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the Debt
so refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means of a
tender offer or privately negotiated repurchase, plus the amount of
expenses of the Company incurred in connection with such refinancing;
PROVIDED, HOWEVER, that Debt the proceeds of which are used to
refinance the Securities or Debt which is PARI PASSU to the Securities
or debt which is subordinate in right of payment to the Securities
shall only be permitted if:
(A) in the case of any refinancing of the Securities
or Debt which is PARI PASSU to the Securities, the refinancing
Debt is made
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PARI PASSU to the Securities or subordinated to the
Securities, and, in the case of any refinancing of Debt which
is subordinated to the Securities, the refinancing Debt
constitutes Subordinated Debt and
(B) in either case, the refinancing Debt by its
terms, or by the terms of any agreement or instrument pursuant
to which such Debt is issued,
(x) does not provide for payments of principal of
such Debt at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by
the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances,
but excluding any retirement required by virtue of
acceleration of such Debt upon any event of default
thereunder), in each case prior to the time the same are
required by the terms of the Debt being refinanced and
(y) does not permit redemption or other retirement
(including pursuant to an offer to purchase made by the
Company) of such Debt at the option of the holder thereof
prior to the final stated maturity of the Debt being
refinanced, other than a redemption or other retirement at the
option of the holder of such Debt (including pursuant to an
offer to purchase made by the Company) which is conditioned
upon a change substantially similar to the provisions of
Section 1016 or which is pursuant to provisions substantially
similar to the provisions of Section 1013;
(v) Debt consisting of Permitted Interest Rate
and Currency Protection Agreements;
(vi) Debt outstanding under the Securities;
(vii) Subordinated Debt invested by:
(a) a group of employees of the Company, which
includes the Chief Executive Officer of the Company, who own,
directly or indirectly, through an employee stock ownership
plan or arrangement, shares of the Company's Capital Stock or
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(b) any other Person that controls the
Company
(i) on the Issue Date or
(ii) after a Change of Control, PROVIDED that the
Company is not in default with respect to its obligations under Section
1016;
(viii) Debt consisting of performance and other similar
bonds and reimbursement obligations Incurred in the ordinary course of
business securing the performance of contractual, franchise or license
obligations of the Company or a Restricted Subsidiary, or in respect of
a letter of credit obtained to secure such performance; and
(ix) Debt not otherwise permitted to be Incurred
pursuant to clauses (i) through (viii) above, which, together with any
other outstanding Debt Incurred pursuant to this clause (ix), has an
aggregate principal amount (or, in the case of Debt issued at a
discount, an accreted amount (determined in accordance with generally
accepted accounting principles) at the time of Incurrence) not in
excess of $10 million at any time outstanding.
For purposes of determining compliance with this Section 1007,
in the event that an item of Debt meets the criteria of more than one of the
types of Debt the Company is permitted to incur pursuant to the foregoing
clauses (i) through (ix) or the first paragraph of this Section 1007, the
Company shall have the right, in its sole discretion, to classify such item of
Debt and shall only be required to include the amount and type of such Debt
under the clause or paragraph permitting the Debt as so classified. The
determination of any particular amount of Debt under such covenant shall be made
without duplication for Guarantees or Liens supporting Debt otherwise included
in the determination of a particular amount.
SECTION 1008. LIMITATION ON DEBT AND PREFERRED STOCK
OF RESTRICTED SUBSIDIARIES.
The Company may not permit any Restricted Subsidiary of the
Company (other than a Restricted Subsidiary that has fully and unconditionally
Guaranteed the Securities on an unsubordinated basis) to Incur or suffer to
exist any Debt or issue any Preferred Stock except:
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(i) Debt or Preferred Stock outstanding on the date of
this Indenture after giving effect to the application of the proceeds
of the Securities;
(ii) Debt Incurred or Preferred Stock issued to and held
by the Company or a Restricted Subsidiary of the Company (provided that
such Debt or Preferred Stock is at all times held by the Company or a
Restricted Subsidiary of the Company);
(iii) Debt Incurred or Preferred Stock issued by
a Person prior to the time:
(A) such Person became a Restricted
Subsidiary of the Company,
(B) such Person merges into or consolidates with a
Restricted Subsidiary of the Company or
(C) another Restricted Subsidiary of the Company
merges into or consolidates with such Person (in a transaction
in which such Person becomes a Restricted Subsidiary of the
Company), which Debt or Preferred Stock was not Incurred or
issued in anticipation of such transaction and was outstanding
prior to such transaction;
(iv) Debt consisting of Permitted Interest Rate
and Currency Protection Agreements;
(v) Debt or Preferred Stock of a Joint
Venture;
(vi) Debt under any one or more Bank Credit Agreements
or Vendor Financing Facilities (and renewals, extensions, refinancings
or refundings thereof) which is permitted to be outstanding under
clause (i) of Section 1007;
(vii) Debt consisting of Guarantees of the
Securities;
(viii) Debt or Preferred Stock which is exchanged for, or
the proceeds of which are used to refinance, refund or redeem, any Debt
or Preferred Stock permitted to be outstanding pursuant to clauses (i),
(iii) and (ix) hereof (or any extension or renewal thereof) (for
purposes hereof, a "refinancing"), in an aggregate principal amount, in
the case of Debt, or with an aggregate liquidation preference, in the
case of
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Preferred Stock, not to exceed the aggregate principal amount of the
Debt so refinanced or the aggregate liquidation preference of the
Preferred Stock so refinanced, plus the amount of any premium required
to be paid in connection with such refinancing pursuant to the terms of
the Debt or Preferred Stock so refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing by means of a tender offer or privately negotiated
repurchase, plus the amount of expenses of the Company and the
Restricted Subsidiary incurred in connection therewith and provided the
Debt or Preferred Stock incurred or issued upon such refinancing by its
terms, or by the terms of any agreement or instrument pursuant to which
such Debt or Preferred Stock is Incurred or issued,
(x) does not provide for payments of principal or
liquidation value at the stated maturity of such Debt or Preferred
Stock or by way of a sinking fund applicable to such Debt or Preferred
Stock or by way of any mandatory redemption, defeasance, retirement or
repurchase of such Debt or Preferred Stock by the Company or any
Restricted Subsidiary of the Company (including any redemption,
retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each
case prior to the time the same are required by the terms of the Debt
or Preferred Stock being refinanced and
(y) does not permit redemption or other retirement (including
pursuant to an offer to purchase made by the Company or a Restricted
Subsidiary of the Company) of such Debt or Preferred Stock at the
option of the holder thereof prior to the stated maturity of the Debt
or Preferred Stock being refinanced, other than a redemption or other
retirement at the option of the holder of such Debt or Preferred Stock
(including pursuant to an offer to purchase made by the Company or a
Restricted Subsidiary of the Company) which is conditioned upon the
change of control of the Company pursuant to provisions substantially
similar to the provisions of Section 1016 or which is pursuant to
provisions substantially similar to the provisions of Section 1013, and
PROVIDED, FURTHER, that in the case of any exchange or redemption of
Preferred Stock of a Restricted Subsidiary of the Company, such
Preferred Stock may only be exchanged for or redeemed with Preferred
Stock of such Restricted Subsidiary;
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(ix) Purchase Money Debt Incurred to finance the
construction, acquisition or improvement of Telecommunications Assets,
PROVIDED that the net proceeds of such Purchase Money Debt do not
exceed 100% of the cost of construction, acquisition or improvement
price of the applicable Telecommunications Assets; and
(x) Debt consisting of performance and other similar
bonds and reimbursement obligations Incurred in the ordinary course of
business securing the performance of contractual, franchise or license
obligations of the Company or a Restricted Subsidiary, or in respect of
a letter of credit obtained to secure such performance; and
(xi) Debt not otherwise permitted to be incurred
pursuant to clauses (i) through (x) above, which, together with any
other outstanding Debt incurred pursuant to this clause (xi), has an
aggregate principal amount (or, in the case of Debt issued at a
discount, an accreted amount (determined in accordance with generally
accepted accounting principles) at the time of Incurrence) not in
excess of $10 million at any time outstanding.
For purposes of determining compliance with this Section 1008,
in the event that an item of Debt meets the criteria of more than one of the
types of Debt a Restricted Subsidiary of the Company is permitted to incur
pursuant to the foregoing clauses (i) through (xi), the Company shall have the
right, in its sole discretion, to classify such item of Debt and shall be only
required to include the amount and type of such Debt under the clause permitting
the Debt as so classified. The determination of any particular amount of Debt
under such covenant shall be made without duplication for Guarantees or Liens
supporting Debt otherwise included in the determination of a particular amount.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
The Company:
(i) may not, directly or indirectly, declare or pay any
dividend, or make any distribution, in respect of its Capital Stock or
to the holders thereof (in their capacity as such), excluding any
dividends or distributions payable solely in shares of its Capital
Stock (other than Disqualified Stock) or in options, warrants or other
rights to acquire its Capital Stock (other than Disqualified Stock);
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(ii) may not, and may not permit any Restricted Subsidiary to,
purchase, redeem, or otherwise retire or acquire for value:
(a) any Capital Stock of the Company or any
Related Person of the Company;
or
(b) any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company or any Related Person of the
Company or any securities convertible or exchangeable into shares of
Capital Stock of the Company or any Related Person of the Company;
(iii) may not make, or permit any Restricted Subsidiary to make, any
Investment in, or payment on a Guarantee of any obligation of, any Person, other
than the Company or a Restricted Subsidiary of the Company, except for Permitted
Investments; and
(iv) may not, and may not permit any Restricted Subsidiary to, redeem,
defease, repurchase, retire or otherwise acquire or retire for value, prior to
any scheduled maturity, repayment or sinking fund payment, Debt of the Company
which is subordinate in right of payment to the Securities (each of clauses (i)
through (iv) being a "Restricted Payment")
if:
(1) a Default or an Event of Default shall have
occurred and is continuing; or
(2) upon giving effect to such Restricted Payment, the Company
could not Incur at least $1.00 of additional Debt pursuant to the
provisions of the first paragraph of Section 1007; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from April 25, 1996 exceeds the
sum of:
(a) 50% of cumulative Consolidated Net Income (or, in
the case Consolidated Net Income shall be negative, less 100%
of such deficit) since the end of the last full fiscal quarter
prior to April 25, 1996 through the last day of the last full
fiscal quarter ending immediately preceding the date of such
Restricted Payment; plus
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(b) $5 million; plus
(c) 100% of the net reduction in Investments in any
Unrestricted Subsidiary since the end of the last full fiscal
quarter prior to April 25, 1996 resulting from payments of
interest on Debt, dividends, repayments of loans or advances,
or other transfers of assets, in each case to the Company or
any Restricted Subsidiary of the Company from such
Unrestricted Subsidiary (except to the extent that any such
payment is included in the calculation of Consolidated Net
Income) or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries; PROVIDED that the amount included in
this clause (c) shall not exceed the amount of Investments
previously made by the Company and its Restricted Subsidiaries
in such Unrestricted Subsidiary; PROVIDED, FURTHER, that the
Company or a Restricted Subsidiary of the Company may make any
Restricted Payment with the aggregate net proceeds received
after April 25, 1996, including the fair value of property
other than cash (determined in good faith by the Board of
Directors, as conclusively evidenced by a Board Resolution
filed with the Trustee), as capital contributions to the
Company or from the issuance (other than to a Restricted
Subsidiary) of Capital Stock (other than Disqualified Stock)
of the Company and warrants, rights or options on Capital
Stock (other than Disqualified Stock) of the Company and the
principal amount of Debt of the Company that has been
converted into Capital Stock (other than Disqualified Stock
and other than by a Restricted Subsidiary) of the Company
after April 25, 1996.
Notwithstanding the foregoing, the Company may
(i) pay any dividend on Capital Stock of any class within 60 days after
the declaration thereof if, on the date when the dividend was declared, the
Company could have paid such dividend in accordance with the foregoing
provisions;
(ii) repurchase any shares of its Common Equity or options to acquire
its Common Equity from Persons who were formerly officers or employees of the
Company, PROVIDED that the aggregate amount of all such repurchases made
pursuant to this clause (ii) shall not exceed $2 million, plus the aggregate
cash proceeds received by the Company since April 25, 1996 from issuances of its
Common Equity or options to acquire its Common Equity to members, officers,
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managers, directors and employees of the Company or any of its Subsidiaries;
(iii) the Company and its Restricted Subsidiaries may refinance any
Debt otherwise permitted by clause (iv) of the second paragraph of Section 1007;
and (iv) the Company and its Restricted Subsidiaries may retire or repurchase
any Capital Stock or Subordinated Debt of the Company in exchange for, or out of
the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of, Capital Stock (other than Disqualified Stock) of
the Company. If the Company makes a Restricted Payment which, at the time of the
making of such Restricted Payment, would in the good faith determination of the
Company be permitted under this Indenture, such Restricted Payment shall be
deemed to have been made in compliance with this Indenture notwithstanding any
subsequent adjustments made in good faith to the Company financial statements
affecting Consolidated Net Income for any period.
In determining the aggregate amount expended or available for
Restricted Payments in accordance with clause (3) of the first paragraph above,
(1) no amounts expended under clauses (iii) or (iv) of the
immediately preceding paragraph shall be included,
(2) 100% of the amounts expended under clauses (i) and (ii) of
the immediately preceding paragraph shall be included, and
(3) no amount shall be credited in respect of issuances of
Capital Stock in transactions under clause (iv) of the immediately
preceding paragraph.
SECTION 1010. LIMITATION ON DIVIDEND AND OTHER
PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company may not, and may not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company
(i) to pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the Company or any other
Restricted Subsidiary of the Company or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary;
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(ii) to make loans or advances to the Company or any
other Restricted Subsidiary; or
(iii) to transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
Notwithstanding the foregoing, the Company may, and may permit any Restricted
Subsidiary to, suffer to exist any such encumbrance or restriction:
(a) pursuant to any agreement in effect on the
Issue Date;
(b) pursuant to an agreement relating to any Acquired Debt,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired and its
Subsidiaries;
(c) pursuant to any one or more Bank Credit Agreements or
Vendor Financing Facilities (and renewals, extensions, refinancings or
refundings thereof) which is permitted to be outstanding under clause (i) or
(ii) of Section 1007 or clause (vi) or (ix) of Section 1008, PROVIDED that such
restriction is consistent with, and not materially more restrictive (as
conclusively determined in good faith by the Chief Financial Officer of the
Company), taken as a whole, than, comparable provisions included in similar
agreements or facilities extended to comparable credits engaged in the
Telecommunications Business and PROVIDED FURTHER that, in the case of any such
Bank Credit Agreement or Vendor Financing Facility entered into by a Restricted
Subsidiary under clause (ii) of Section 1007 or clause (ix) of Section 1008,
such encumbrances or restrictions do not prohibit dividends, distributions,
loans or advances by such Restricted Subsidiary to the Company or another
Restricted Subsidiary to the extent that the failure to make such distribution,
loan or advance would result in the Company defaulting in the payment of
principal or interest on its indebtedness;
(d) pursuant to an agreement effecting a renewal, refunding or
extension of Debt Incurred pursuant to an agreement referred to in clause (a) or
(b) above or (e) below, PROVIDED, HOWEVER, that the provisions contained in such
renewal, refunding or extension agreement relating to such encumbrance or
restriction are not materially more restrictive (as conclusively determined in
good faith by the Chief Financial Officer of the Company), taken as a whole,
than the provisions contained in the agreement the subject thereof;
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(e) in the case of clause (iii) above, restrictions contained
in any security agreement (including a Capital Lease Obligation) securing Debt
of the Company or a Restricted Subsidiary otherwise permitted under this
Indenture, but only to the extent such restrictions restrict the transfer of the
property subject to such security agreement;
(f) in the case of clause (iii) above, customary nonassignment
provisions entered into in the ordinary course of business in leases and other
agreements;
(g) any restriction with respect to a Restricted Subsidiary of
the Company imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary, provided that consummation of such transaction
would not result in a Default or an Event of Default, that such restriction
terminates if such transaction is not consummated and that such consummation or
abandonment of such transaction occurs within one year of the date such
agreement was entered into;
(h) pursuant to applicable law or regulations;
(i) pursuant to this Indenture and the Securities;
or
(j) any restriction on the sale or other disposition of assets
or property securing Debt as a result of a Permitted Lien on such assets or
property.
SECTION 1011. LIMITATION ON LIENS.
The Company may not, and may not permit any Restricted
Subsidiary of the Company to, Incur or suffer to exist any Lien on or with
respect to any property or assets now owned or hereafter acquired to secure any
Debt without making, or causing such Restricted Subsidiary to make, effective
provision for securing the Securities:
(x) equally and ratably with (or prior to) such Debt as to
such property for so long as such Debt will be so secured or
(y) in the event such Debt is Debt of the Company which is
subordinate in right of payment to the Securities, prior to such Debt
as to such property for so long as such Debt will be so secured.
The foregoing restrictions shall not apply to:
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(i) Liens existing on the Issue Date and securing Debt
outstanding on the Issue Date or securing the Securities or Liens
securing Debt Incurred pursuant to any Bank Credit Agreement or Vendor
Financing Facility (whether or not such Bank Credit Agreement or Vendor
Financing Facility was outstanding on the Issue Date);
(ii) Liens securing Debt in an amount which, together with the
aggregate amount of Debt then outstanding or available under the Bank
Credit Agreement and Vendor Financing Facility (or under refinancings
or amendments of such agreements), does not exceed 1.5 times the
Company's Consolidated Cash Flow Available for Fixed Charges for the
four full fiscal quarters preceding the Incurrence of such Lien for
which consolidated financial statements are available, determined on a
pro forma basis as if such Debt had been Incurred and the proceeds
thereof had been applied at the beginning of such four fiscal quarters;
(iii) Liens in favor of the Company or any Wholly- Owned
Restricted Subsidiary of the Company;
(iv) Liens on real or personal property of the Company or a
Restricted Subsidiary of the Company acquired, constructed or
constituting improvements made after the Issue Date to secure Purchase
Money Debt which is Incurred for the construction, acquisition and
improvement of Telecommunications Assets and is otherwise permitted
under this Indenture, PROVIDED, HOWEVER, that
(a) the net proceeds of any Debt secured by such a
Lien does not exceed 100% of such purchase price or cost of
construction or improvement of the property subject to such Lien,
(b) such Lien attaches to such property prior to, at
the time of or within 180 days after the acquisition, completion of
construction or commencement of operation of such property and
(c) such Lien does not extend to or cover any
property other than the property (or identifiable portions thereof)
acquired, constructed or constituting the improvements made with the
proceeds of such Purchase Money Debt (it being understood and agreed
that all Debt owed to any single lender or group of lenders or
outstanding under any single credit facility shall be considered a
single Purchase Money Debt, whether drawn at one time or from time to
time);
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(v) Liens to secure Acquired Debt, PROVIDED, HOWEVER, that
(a) such Lien attaches to the acquired asset prior to
the time of the acquisition of such asset and
(b) such Lien does not extend to or cover any other
asset;
(vi) Liens to secure Debt Incurred to extend, renew, refinance
or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, Debt secured by any Lien referred to
in the foregoing clauses (i), (ii), (iv) and (v) so long as such Lien
does not extend to any other property and the principal amount of Debt
so secured is not increased except as otherwise permitted under clause
(iv) of Section 1007;
(vii) Liens securing Debt not otherwise permitted by the
foregoing clauses (i) through (vi) in an amount not to exceed 5% of the
Company's Consolidated Tangible Assets determined as of the most recent
available quarterly or annual balance sheet; and
(viii) Permitted Liens.
SECTION 1012. LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS.
The Company may not, and may not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless
(i) the Company or such Restricted Subsidiary would be
entitled to Incur a Lien to secure Debt by reason of the provisions of
Section 1011, equal in amount to the Attributable Value of the Sale and
Leaseback Transaction without equally and ratably securing the
Securities; or
(ii) the Sale and Leaseback Transaction is treated as an Asset
Disposition and all of the conditions of Section 1013 (including the
provisions concerning the application of Net Available Proceeds) are
satisfied with respect to such Sale and Leaseback Transaction, treating
all of the consideration received in such Sale and Leaseback
Transaction in the same manner as consideration in respect of an Asset
Disposition for purposes of such covenant.
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SECTION 1013. LIMITATION ON ASSET DISPOSITIONS.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related transactions
occurring within any 12-month period unless:
(i) the Company or the Restricted Subsidiary, as the
case may be, receives consideration for such disposition at least equal
to the fair market value for the assets sold or disposed of as
determined by the Board of Directors in good faith and evidenced by a
Board Resolution filed with the Trustee, which determination shall be
conclusive;
(ii) at least 75% of the consideration for such
disposition consists of:
(1) cash or readily marketable cash equivalents or
the assumption of Debt or other obligations of the Company (other than
Debt that is subordinated to the Securities) or of the Restricted
Subsidiary and release from all liability on the Debt or other
obligations assumed;
(2) Telecommunications Assets; or
(3) shares of publicly-traded Voting Stock of any
Person engaged in the Telecommunications Business in the United States;
and (iii) all Net Available Proceeds, less any amounts invested in
Telecommunications Assets (within 180 days prior to and 360 days
following such disposition), are applied within 360 days of such
disposition
(1) first, to the permanent repayment or reduction of
Debt then outstanding under any Bank Credit Agreement or
Vendor Financing Facility, to the extent such agreements would
require such application or prohibit payments pursuant to
clause (2) following,
(2) second, to the extent of remaining Net Available
Proceeds, to make an Offer to Purchase outstanding Securities
at 100% of their Accreted Value (if such Offer to Purchase is
made on or before December 1, 2004) or 100% of their principal
amount plus accrued interest to the date of purchase (if such
Offer to Purchase is made thereafter)
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and, to the extent required by the terms thereof, any other
Debt of the Company that is PARI PASSU with the Securities at
a price no greater than 100% of the principal amount thereof
plus accrued interest to the date of purchase (or 100% of the
accreted value in the case of original issue discount Debt)
and
(3) third, to the extent of any remaining Net
Available Proceeds following the completion of the Offer to
Purchase, to the repayment of other Debt of the Company or
Debt of a Restricted Subsidiary of the Company, to the extent
permitted under the terms thereof. To the extent any Net
Available Proceeds remain after such uses, the Company and its
Restricted Subsidiaries may use such amounts for any purposes
not prohibited by this Indenture.
(b) The Company will mail the Offer for an Offer to Purchase
required pursuant to Section 1013(a) not more than 360 days after consummation
of the disposition referred to in Section 1013(a). The aggregate principal
amount of the Securities to be offered to be purchased pursuant to the Offer to
Purchase shall equal the Net Available Proceeds available therefor pursuant to
Clause (iii)(2) of Section 1013(a) (rounded down to the next lowest integral
multiple of $1,000). Each Holder shall be entitled to tender all or any portion
of the Securities owned by such Holder pursuant to the Offer to Purchase,
subject to the requirement that any portion of a Security tendered must be
tendered in an integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its
obligations under this Section 1013 for the principal amount of any Securities
acquired or redeemed by the Company otherwise than pursuant to the Offer to
Purchase pursuant to this Section 1013.
(c) Not later than the date of the Offer with respect to an
Offer to Purchase pursuant to this Section 1013, the Company shall deliver to
the Trustee an Officers' Certificate as to
(i) the Purchase Amount,
(ii) the allocation of the Net Available Proceeds from
the Asset Disposition pursuant to which such Offer is being made,
including, if amounts are invested in Telecommunication Assets, the
amount of the assets acquired and
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(iii) the compliance of such allocation with the
provisions of Section 1013(a).
The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. On or prior to the
Purchase Date, the Company shall
(i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the
Offer,
(ii) deposit with the Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of
all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof accepted for payment by the Company.
The Paying Agent (or the Company, if so acting) shall promptly mail or
deliver to Holders of Securities so accepted payment in an amount equal
to the purchase price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Security of like tenor equal in
principal amount to any unpurchased portion of the Security
surrendered. Any Security not accepted for payment shall be promptly
mailed or delivered by the Company to the Holder thereof.
(d) Notwithstanding the foregoing, this Section 1013 shall not
apply to any Asset Disposition which constitutes a transfer, conveyance, sale,
lease or other disposition of all or substantially all of the Company's
properties or assets within the meaning of Section 801 hereof.
SECTION 1014. LIMITATION ON ISSUANCES AND SALES OF
CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company may not, and may not permit any Restricted
Subsidiary of the Company to, issue, transfer, convey, sell or otherwise dispose
of any shares of Capital Stock of a Restricted Subsidiary of the Company or
securities convertible or exchangeable into, or options, warrants, rights or any
other interest with respect to, Capital Stock of a Restricted Subsidiary of the
Company to any person other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company except
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(i) in a transaction that complies with the
provisions of Section 1013;
(ii) if required, the issuance, transfer, conveyance,
sale or other disposition of directors' qualifying shares;
(iii) in a transaction in which, or in connection with
which, the Company or a Restricted Subsidiary acquires at the same time
sufficient Capital Stock of such Restricted Subsidiary to at least
maintain the same percentage ownership interest it had prior to such
transaction;
(iv) constituting the issuance of Preferred Stock
permitted by the provisions of Section 1008; and
(v) Disqualified Stock issued in exchange for, or upon
conversion of, or the proceeds of the issuance of which are used to
redeem, refinance, replace or refund shares of Disqualified Stock of
such Restricted Subsidiary, provided that the amounts of the redemption
obligations of such Disqualified Stock shall not exceed the amounts of
the redemption obligations of, and such Disqualified Stock shall have
redemption obligations no earlier than those required by, the
Disqualified Stock being exchanged, converted, redeemed, refinanced,
replaced or refunded.
SECTION 1015. TRANSACTIONS WITH AFFILIATES
AND RELATED PERSONS.
The Company may not, and may not permit any Restricted
Subsidiary of the Company to, enter into any transaction (or series of related
transactions) with an Affiliate or Related Person of the Company (other than the
Company or a Wholly-Owned Restricted Subsidiary of the Company), including any
Investment, but excluding transactions pursuant to employee compensation
arrangements approved by the Board of Directors, either directly or indirectly,
unless such transaction is on terms no less favorable to the Company or such
Restricted Subsidiary than those that could reasonably be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate or
Related Person and is in the best interests of such Company or such Restricted
Subsidiary. For any transaction that involves in excess of $1 million but less
than or equal to $15 million, the Chief Executive Officer of the Company shall
determine that the transaction satisfies the above criteria and shall evidence
such a determination by an Officer's Certificate filed with the Trustee. For any
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transaction that involves in excess of $15 million, the Company shall also
either
(x) obtain the approval of the transaction from the Board of
Directors including a majority of the disinterested members of the
Board of Directors or
(y) obtain an opinion from a nationally recognized investment
bank or other expert with experience in appraising the terms and
conditions, taken as a whole, of the type of transaction (or series of
related transactions) for which the opinion is required stating that
such transaction (or series of related transactions) is on terms and
conditions, taken as a whole, no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or
Related Person of the Company, which opinion shall be filed with the
Trustee. This covenant shall not apply to Investments by an Affiliate
or a Related Person of the Company in the Capital Stock (other than
Disqualified Stock) of the Company or any Restricted Subsidiary of the
Company.
SECTION 1016. CHANGE OF CONTROL.
(a) Within 30 days of the occurrence of a Change of Control,
the Company will be required to make an Offer to Purchase all Outstanding
Securities at a purchase price equal to 101% of their Accreted Value (if such
Offer to Purchase is made on or prior to December 1, 2004) or 101% of their
principal amount plus accrued and unpaid interest to the date of purchase (if
such Offer to Purchase is consummated thereafter).
(b) The Company and Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. On or prior to the
Purchase Date, the Company shall
(i) accept for payment Securities or portions
thereof tendered pursuant to the Offer,
(ii) deposit with the Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of
all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an
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Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or
Securities equal in principal amount to any unpurchased portion of the
Security surrendered as requested by the Holder. Any Security not
accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof.
(c) A "Change of Control" will be deemed to have occurred at
such time as either
(a) any Person or any Persons acting together that would
constitute a "group" (a "Group") for purposes of Section 13(d) of the
Exchange Act, or any successor provision thereto (other than Eagle
River, Xx. Xxxxx X. XxXxx and their respective Affiliates or an
underwriter engaged in a firm commitment underwriting on behalf of the
Company), shall beneficially own (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision thereto) more than
50% of the aggregate voting power of all classes of Voting Stock
of the Company; or
(b) neither Xx. Xxxxx X. XxXxx nor any person designated by
him to the Company as acting on his behalf shall be a director of the
Company; or
(c) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by the Board of
Directors or whose nomination for election by the shareholders of the
Company was proposed by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office.
(d) In the event that the Company makes an Offer to Purchase
the Securities, the Company intends to comply with any applicable securities
laws and regulations, including any applicable requirements of Section 14(e) of,
and Rule 14e-1 under, the Exchange Act.
(e) Unless the Company defaults in the payment of the Purchase
Price, any Security accepted for payment
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pursuant to an Offer to Purchase shall cease to accrue interest after the
Purchase Date.
SECTION 1017. PROVISION OF FINANCIAL INFORMATION.
The Company has agreed to file with the Trustee, within 15
days after it files them with the Commission, copies of the SEC Reports. In the
event the Company shall cease to be required to file SEC Reports pursuant to the
Exchange Act, the Company will nevertheless continue to file such reports with
the Commission (unless the Commission will not accept such a filing) and the
Trustee. The Company will furnish copies of the SEC Reports to the Holders of
Securities at the time the Company is required to file the same with the Trustee
and will make such information available to investors who request it in writing.
SECTION 1018. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each quarter of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware of the
occurrence of a Default or an Event of Default, an Officers' Certificate setting
forth the details of such Default or Event of Default and the action which the
Company proposes to take with respect thereto.
SECTION 1019. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1017, inclusive, if
before or after the time for such compliance the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become
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effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 1020. LIMITATION ON USE OF PROCEEDS.
The Company will apply the net proceeds received from the
issuance and sale of the Securities (the "Securities Net Proceeds") toward the
construction, improvement, and acquisition by the Company or one or more
Restricted Subsidiaries of the Company or Joint Ventures of Telecommunications
Assets of the Company, such Restricted Subsidiaries or Joint Ventures (or will
advance such net proceeds to such Restricted Subsidiaries of the Company or
Joint Ventures for such purpose); provided, however, pending such application,
the Securities Net Proceeds may be invested in Marketable Securities.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
(a) The Securities may be redeemed prior to December 1, 2004
only in the event that on or before December 1, 2002 the Company receives net
proceeds from a sale of its Common Equity, in which case the Company may, at its
option, use all or a portion of any such net proceeds to redeem Securities in a
principal amount of up to an aggregate amount equal to 33 1/3% of the Accreted
Value of the Securities at a Redemption Price of 112.125% of the Accreted Value
of the Securities, to but excluding the Redemption Date; PROVIDED, HOWEVER, that
Securities in an amount equal to at least 66 2/3% of the Accreted Value of the
Notes remain outstanding after such redemption and such redemption occurs on a
Redemption Date within 90 days of any such sale of the Company's Common Equity
and upon not less than 30 nor more than 60 days' notice by mail to each Holder
of Securities to be redeemed at such Holder's address appearing in the Security
Register. The Company may only redeem Securities in amounts of $1,000 or an
integral multiple of $1,000.
(b) The Securities further may be redeemed, as a whole or in
part, at the election of the Company, at any time on or after December 1, 2004
and prior to maturity, upon not less than 30 nor more than 60 days' notice by
mail to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of
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$1,000 or an integral multiple of $1,000, at the Redemption Prices specified in
the form of Security hereinbefore set forth, together with accrued and unpaid
interest to, but excluding, the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1104. SECURITIES TO BE REDEEMED PRO RATA.
If less than all the Securities are to be redeemed in any
redemption, the Securities to be redeemed shall be selected by the Trustee by
prorating, as nearly as may be practicable, the principal amount of Securities
to be redeemed. In any proration pursuant to this Section, the Trustee shall
make such adjustments, reallocations and eliminations as it shall deem proper
(and in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed) to the end that the
principal amount of Securities so prorated shall be $1,000 or a multiple
thereof, by increasing or decreasing or eliminating the amount which would be
allocable to any Holder on the basis of exact proportion by an amount not
exceeding $1,000. The Trustee in its discretion may determine the particular
Securities (if there are more
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than one) registered in the name of any Holder which are to be redeemed, in
whole or in part.
The Trustee shall promptly notify the Company and each
Security Registrar (other than the Trustee) in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at such Holder's
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section
1101(a) or (b) and, if being made pursuant to Section 1101(a), a brief
statement setting forth the Company's right to effect such redemption
and the Company's basis therefor,
(4) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to
be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
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(7) that in the case that a Security is only redeemed in part,
the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities in an aggregate amount equal to the unredeemed
portion of the Security,
(8) the aggregate principal amount of Securities being
redeemed, and
(9) the CUSIP number or numbers of the Securities being
redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, if request is made to
the Trustee no less than 35 days prior to the Redemption Date, by the Trustee in
the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued and unpaid interest
on, all the Securities which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
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If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate provided
by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered. If a Global Security is so surrendered, such new Security shall
also be a Global Security.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution at any time
(subject to 10-day prior written notification to the Trustee), elect to have
either Section 1202 or Section 1203 applied to the Outstanding Securities upon
compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
1201 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such
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Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 1204 and as
more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest on such Securities when
such payments are due,
(B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003,
(C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and
(D) this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option under this Section
1202 notwithstanding the prior exercise of its option under Section
1203.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided
in Section 1201 applicable to this Section
(i) the Company shall be released from its obligations
under Sections 1005 through 1017, inclusive, and Clauses (3) and (4) of
Section 801,
(ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (3) and (4) of Section 801),
and 501 (5) (with respect to Sections 1005 through 1017, inclusive)
shall not be deemed to be an Event of Default, on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or
Article, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein
or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
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SECTION 1204. CONDITIONS TO DEFEASANCE OR
COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or
(B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an
amount, or
(C) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent certified
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge,
the principal of, premium, if any, and each installment of
interest on the Securities on the Stated Maturity of such
principal or installment of interest on the day on which such
payments are due and payable in accordance with the terms of
this Indenture and of such Securities. For this purpose, "U.S.
Government Obligations" means securities that are
(x) direct obligations of the United States
of America for the payment of which its full faith
and credit is pledged or
(y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S.
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Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depositary
receipt, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of
or interest on the U.S. Government Obligation evidenced by
such depositary receipt.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections
501(8) and (9) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with.
(6) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or
(y) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall
confirm that, the
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Holders of the Outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge 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 deposit, defeasance and discharge had not occurred.
(7) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and 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.
(8) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such deposit and defeasance or covenant
defeasance shall not result in the trust arising from such deposit
constituting an investment company as defined in the Investment Company
Act of 1940, as amended, or such trust shall be qualified under such
act or exempt from regulation thereunder.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant
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to Section 1204 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1204 which, in the opinion of a nationally recognized
accounting firm expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1202 or 1203 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1202 and 1203; PROVIDED, HOWEVER, that if the Company makes any payment
of principal of (and premium, if any) any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
SECTION 1207. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security 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 security
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
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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.
------------------------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, and the Trustee has caused its seal
to be hereunto affixed and attested, all as of the day and year first above
written.
NEXTLINK Communications, Inc.
By: /s/ R. Xxxxx Xxxxxx, Xx.
-------------------------------
Name: R. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest:
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx
Title: Assistant Secretary
U.S. TRUST COMPANY OF TEXAS
By__________________________
Name:
Title:
[SEAL]
Attest:
---------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, and the Trustee has caused its seal
to be hereunto affixed and attested, all as of the day and year first above
written.
NEXTLINK Communications, Inc.
By:
-------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
U.S. TRUST COMPANY OF TEXAS
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
[SEAL]
Attest:
/s/ Xxxxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
STATE OF WASHINGTON )
ss.:
COUNTY OF KING )
On this __th day of November, 1999, before me personally
appeared R. Xxxxx Xxxxxx, Xx., to me known, who, being duly sworn, did depose
and say that he/she is the Vice President of NEXTLINK Communications, Inc.,
one of the corporations described in and which executed the foregoing
instrument, and duly acknowledged to me that he/she executed the same by
authority of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Notary Public
-------------------
XXXXXXX X. XXXXXXX
NOTARY PUBLIC
STATE OF WASHINGTON
COMMISSION EXPIRES
AUGUST 19, 0000
-------------------
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK )
On this __th day of November, 1999, before me personally
appeared __________________, to me known, who, being duly sworn, did depose
and say that he/she is the _______________________ of U.S. Trust Company of
Texas, one of the corporations described in and which executed the foregoing
instrument, and duly acknowledged to me that he/she executed the same by
authority of the Board of Directors of said corporation.
------------------------------
Notary Public
STATE OF WASHINGTON )
ss.:
COUNTY OF )
On this __th day of November, 1999, before me personally
appeared ____________, to me known, who, being duly sworn, did depose and say
that he/she is the ______________ of NEXTLINK Communications, Inc., one of the
corporations described in and which executed the foregoing instrument, and duly
acknowledged to me that he/she executed the same by authority of the Board of
Directors of said corporation.
------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this 17th day of November, 1999, before me personally
appeared XXXXXX X. XXXXX, to me known, who, being duly sworn, did depose and
say that he/she is the AUTHORIZED SIGNATORY of U.S. Trust Company of Texas,
one of the corporations described in and which executed the foregoing
instrument, and duly acknowledged to me that he/she executed the same by
authority of the Board of Directors of said corporation.
/s/ Xxxxxxxxxxx Xxxxx
------------------------------
Notary Public
--------------------------------
XXXXXXXXXXX XXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01GR5012466
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES JUNE 15, 2001
--------------------------------
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Sections 305(b)(i), (iii) and (v)
of the Indenture)
U.S. Trust Company of Texas,
as Trustee
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 12 1/8% Senior Discount Notes due 2009
of NEXTLINK Communications, Inc.
(THE "SECURITIES")
Reference is made to the Indenture, dated as of November 17,
1999 (the "Indenture"), between NEXTLINK Communications, Inc. (the "Company")
and U.S. Trust Company of Texas, as Trustee. Terms used herein and defined in
the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In
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connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) RULE 904 TRANSFERS. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a
person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United
States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market,
as regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in
respect of the Specified Securities, and the transfer is to
occur during the Restricted Period, then the requirements of
Rule 904(c)(1) have been satisfied; and
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(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of
the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified
Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Purchasers.
Dated:
----------------------------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certificate.)
By:
----------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
A-4
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 305(b)(ii), (iii), (iv) and (v)
of the Indenture)
U.S. Trust Company of Texas,
as Trustee
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 12 1/8% Senior Discount Notes due 2009
of NEXTLINK Communications, Inc.
(THE "SECURITIES")
Reference is made to the Indenture, dated as of November 17,
1999 (the "Indenture"), between NEXTLINK Communications Inc. (the "Company") and
U.S. Trust Company of Texas, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified
Securities be transferred to a person (the "Transferee") who will
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take delivery in the form of a Restricted Security. In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A or Rule 144 under the
Securities Act and all applicable securities laws of the states of the United
States and other jurisdictions. Accordingly, the Owner hereby further certifies
as follows:
(1) RULE 144A TRANSFERS. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to
a person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in connection
with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of
the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified
Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Purchasers.
Dated:
-----------------------------------------------------
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(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
-------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
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XXXXX X -- Xxxx xx Xxxxxxxxxxxx
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Sections 305(c))
U.S. Trust Company of Texas,
as Trustee
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 12 1/8% Senior Discount Notes due 2009
of NEXTLINK Communications, Inc.
(THE "SECURITIES")
Reference is made to the Indenture, dated as of November 17,
1999 (the "Indenture"), between NEXTLINK Communications, Inc. (the "Company")
and U.S. Trust Company of Texas, as Trustee. Terms used herein and defined in
the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified
Securities be exchanged for Securities bearing no Securities Act
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Legend pursuant to Section 305(c) of the Indenture. In connection with such
exchange, the Owner hereby certifies that the exchange is occurring after a
holding period of at least two years (computed in accordance with paragraph (d)
of Rule 144) has elapsed since the Specified Securities were last acquired from
the Company or from an affiliate of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an affiliate
of the Company. The Owner also acknowledges that any future transfers of the
Specified Securities must comply with all applicable securities laws of the
states of the United States and other jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Purchasers.
Dated:
---------------------------------------------------
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
By:
---------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
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