EXECUTION COPY
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RSL COMMUNICATIONS PLC
As Issuer
RSL COMMUNICATIONS, LTD.
As Guarantor
TO
THE CHASE MANHATTAN BANK
As Trustee
------------------------------------
Indenture
Dated as of February 27, 1998
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9 1/8% SENIOR NOTES DUE 2008
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Certain Sections of this Indenture relating to
Sections 3.10 through 3.18 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
----------- -------
ss.3.10(a)(1) .......................................... 609
(a)(2) .......................................... 609
(a)(3) .......................................... Not
Applicable
(a)(4) .......................................... Not
Applicable
(b) .......................................... 6.08
6.10
ss. 3.11(a) .......................................... 6.13
(b) .......................................... 6.13
ss. 3.12(a) .......................................... 7.01
7.02(a)
(b) .......................................... 7.02(b)
(c) .......................................... 7.02(c)
ss. 3.13(a) .......................................... 7.03(a)
(a)(4) .......................................... 7.03(a)
(b) .......................................... 7.03(a)
(c) .......................................... 7.03(a)
(d) .......................................... 7.03(b)
ss. 3.14(a) .......................................... 7.04
10.18
(b) .......................................... Not
Applicable
(c)(1) .......................................... 1.02
(c)(2) .......................................... 1.02
(c)(3) .......................................... Not
Applicable
(d) .......................................... Not
Applicable
(e) .......................................... 1.02
ss. 3.15(a) .......................................... 6.01
(b) .......................................... 6.02
(c) .......................................... 6.01
(d) .......................................... 6.01
(e) .......................................... 5.14
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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Trust Indenture Indenture
Act Section Section
----------- -------
ss. 3.16(a)(1)(A) ...........................................
5.02
5.12
(a)(1)(B) ........................................... 5.13
(a)(2) ........................................... Not
Applicable
(b) ........................................... 5.08
(c) ........................................... 1.04
ss. 3.17(a)(1) ........................................... 5.03
(a)(2) ........................................... 5.04
(b) ........................................... 10.03
ss. 3.18(a) ........................................... 1.07
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
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Parties........................................................................1
Recitals of the Issuer ........................................................1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions ....................................................2
Act...................................................................2
Acquired Debt.........................................................2
Additional Amounts....................................................3
Additional Securities.................................................3
Affiliate.............................................................3
Agent Member..........................................................3
Applicable Procedures.................................................3
Asset Disposition.....................................................3
Average Life..........................................................4
beneficial interest...................................................4
Board of Directors....................................................4
Board Resolution......................................................4
Book-Entry Depositary.................................................4
Business Day..........................................................4
Capital Lease Obligation..............................................4
Capital Stock.........................................................5
Cedel.................................................................5
Change of Control.....................................................5
Commission............................................................5
Common Stock..........................................................5
Consolidated Cash Flow Available for Fixed Charges....................5
Consolidated Income Tax Expense.......................................6
Consolidated Interest Expense.........................................6
Consolidated Net Income...............................................7
Consolidated Net Worth................................................7
Consolidated Tangible Assets..........................................7
Corporate Trust Office................................................7
corporation...........................................................7
Credit Facility.......................................................8
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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Debt..................................................................8
Defaulted Interest....................................................9
Definitive Security...................................................9
Deposit Agreement.....................................................9
Depositary............................................................9
Depositary Interest...................................................9
Disqualified Stock....................................................9
Eligible Institution.................................................10
Equity Clawback......................................................10
Euroclear............................................................10
Event of Default.....................................................10
Exchange Act.........................................................10
Exchange and Registration Rights Agreement...........................10
Exchange Offer.......................................................10
Exchange Offer Registration Statement................................10
Exchange Security....................................................11
Existing Stockholders................................................11
Expiration Date......................................................11
Global Security......................................................11
Government Securities................................................11
Guarantee............................................................11
Guarantor............................................................12
Holder...............................................................12
Incremental Paid-in Capital..........................................12
Incur................................................................12
Indenture............................................................12
Indirect Participant.................................................13
Initial Purchasers...................................................13
Interest Payment Date................................................13
Interest Rate or Currency Protection Agreement.......................13
Investment...........................................................13
Issuer...............................................................14
Issuer Request or Issuer Order.......................................14
Lien.................................................................14
Listing Failure......................................................14
Marketable Securities................................................14
Maturity.............................................................15
Net Available Proceeds...............................................15
Offer to Purchase....................................................16
Officers' Certificate................................................18
Opinion of Counsel...................................................18
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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Original Securities..................................................19
Outstanding..........................................................19
Participant..........................................................20
Paying Agent.........................................................20
Permitted Interest Rate or Currency Protection
Agreement............................................................20
Permitted Investment.................................................20
Permitted Liens......................................................21
Person...............................................................21
Predecessor Security.................................................22
Purchase Agreement...................................................22
Purchase Money Debt..................................................22
readily marketable cash equivalents..................................22
Receivables..........................................................23
Receivables Sale.....................................................23
Redemption Date......................................................23
Redemption Price.....................................................23
Registered Securities................................................23
Regular Record Date..................................................23
Regulation S.........................................................23
Regulation S Certificate.............................................23
Regulation S Global Security.........................................23
Regulation S Legend..................................................23
Regulation S Securities..............................................24
Related Person.......................................................24
Resale Registration Statement........................................24
Responsible Officer..................................................24
Restricted Global Security...........................................24
Restricted Period....................................................24
Restricted Securities................................................25
Restricted Securities Certificate....................................25
Restricted Securities Legend.........................................25
Restricted Subsidiary................................................25
RSLNA................................................................25
Rule 144A............................................................25
Rule 144A Securities.................................................25
Securities...........................................................25
Securities Act.......................................................25
Securities Act Legend................................................25
Securities Guarantee.................................................25
Security Register and Security Registrar.............................25
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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Senior Discount Securities...........................................25
Senior Discount Securities Indenture.................................25
Significant Subsidiary...............................................26
Special Interest.....................................................26
Special Record Date..................................................26
Stated Maturity......................................................26
Step-Down Date.......................................................26
Step-Up..............................................................26
Strategic Investor...................................................26
Subordinated Debt....................................................26
Subsidiary...........................................................27
Subsidiary Guarantor.................................................28
Substitute Securities................................................28
Successor Security...................................................28
Tax..................................................................28
Taxing Authority.....................................................28
Telecommunications Assets............................................28
Telecommunications Business..........................................29
Trustee..............................................................29
Trust Indenture Act..................................................29
Unrestricted Securities Certificate..................................29
Unrestricted Subsidiary..............................................29
Vice President.......................................................30
Voting Stock.........................................................30
Wholly Owned Subsidiary..............................................30
SECTION 1.02. Compliance Certificates and Opinions...........................30
SECTION 1.03. Form of Documents Delivered to Trustee.........................31
SECTION 1.04. Acts of Holders; Record Dates..................................32
SECTION 1.05. Notices, Etc., to Trustee, Issuer and
Guarantor......................................................35
SECTION 1.06. Notice to Holders; Waiver......................................35
SECTION 1.07. Application of Trust Indenture Act.............................36
SECTION 1.08. Effect of Headings and Table of Contents.......................36
SECTION 1.09. Successors and Assigns.........................................36
SECTION 1.10. Separability Clause............................................36
SECTION 1.11. Benefits of Indenture..........................................36
SECTION 1.12. Governing Law..................................................36
SECTION 1.13. Legal Holidays.................................................37
SECTION 1.14. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities.............................37
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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ARTICLE II
Security Forms
SECTION 2.01. Forms Generally................................................38
SECTION 2.02. Form of Face of Security.......................................39
SECTION 2.03. Form of Reverse of Security....................................45
SECTION 2.04. Form of Trustee's Certificate of
Authentication ................................................50
ARTICLE III
The Securities
SECTION 3.01. Title and Terms................................................50
SECTION 3.02. Denominations..................................................52
SECTION 3.03. Execution, Authentication, Delivery and
Dating.........................................................53
SECTION 3.04. Temporary Securities...........................................54
SECTION 3.05. Registration, Registration of Transfer and
Exchange.......................................................55
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.....................................................61
SECTION 3.07. Payment of Interest; Interest
Rights Preserved...............................................62
SECTION 3.08. Persons Deemed Owners..........................................64
SECTION 3.09. Cancelation ...................................................64
SECTION 3.10. Computation of Interest........................................64
SECTION 3.11. CUSIP and ISIN Numbers.........................................65
SECTION 3.12. Additional Securities..........................................65
ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee ...................................................65
SECTION 4.02. Obligations Unconditional......................................67
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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SECTION 4.03. Notice to Trustee..............................................68
ARTICLE V
Remedies
SECTION 5.01. Events of Default..............................................68
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment......................................................70
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.........................................71
SECTION 5.04. Trustee May File Proofs of Claim...............................72
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities.......................................73
SECTION 5.06. Application of Money Collected.................................73
SECTION 5.07. Limitation on Suits............................................74
SECTION 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest................................74
SECTION 5.09. Restoration of Rights and Remedies.............................75
SECTION 5.10. Rights and Remedies Cumulative.................................75
SECTION 5.11. Delay or Omission Not Waiver...................................75
SECTION 5.12. Control by Holders.............................................76
SECTION 5.13. Waiver of Past Defaults........................................76
SECTION 5.14. Undertaking for Costs..........................................76
SECTION 5.15. Waiver of Stay or Extension Laws...............................77
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities............................77
SECTION 6.02. Notice of Defaults.............................................79
SECTION 6.03. Certain Rights of Trustee......................................79
SECTION 6.04. Not Responsible for Recitals
or Issuance of Securities......................................80
SECTION 6.05. May Hold Securities............................................81
SECTION 6.06. Money Held in Trust............................................81
SECTION 6.07. Compensation and Reimbursement.................................81
SECTION 6.08. Disqualification; Conflicting Interests........................82
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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SECTION 6.09. Corporate Trustee Required; Eligibility........................82
SECTION 6.10. Resignation and Removal; Appointment of
Successor......................................................83
SECTION 6.11. Acceptance of Appointment by Successor.........................84
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.........................................85
SECTION 6.13. Preferential Collection of Claims Against
Issuer or Guarantor............................................85
SECTION 6.14. Appointment of Authenticating Agent............................85
SECTION 6.15. Withholding Taxes..............................................87
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and
Addresses of Holder............................................88
SECTION 7.02. Preservation of Information;
Communications to Holders......................................88
SECTION 7.03. Reports by Trustee.............................................89
SECTION 7.04. Reports by Issuer and Guarantor................................89
SECTION 7.05. Officers' Certificate with Respect to
Change in Interest Rates.......................................89
ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain
Sales of Assets................................................90
SECTION 8.02. Successor Substituted..........................................91
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent
of Holders.....................................................92
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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SECTION 9.02. Supplemental Indentures with Consent of
Holders........................................................93
SECTION 9.03. Execution of Supplemental Indentures...........................94
SECTION 9.04. Effect of Supplemental Indentures..............................94
SECTION 9.05. Conformity with Trust Indenture Act............................94
SECTION 9.06. Reference in Securities to Supplemental
Indentures.....................................................94
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and
Interest......................................................95
SECTION 10.02. Maintenance of Office or Agency...............................95
SECTION 10.03. Money for Security Payments To Be Held
in Trust......................................................95
SECTION 10.04. Existence ...................................................97
SECTION 10.05. Maintenance of Properties.....................................97
SECTION 10.06. Payment of Taxes and Other Claims.............................98
SECTION 10.07. Maintenance of Insurance......................................98
SECTION 10.08. Limitation on Consolidated Debt...............................98
SECTION 10.09. Additional Amounts...........................................101
SECTION 10.10. Limitation on Restricted Payments............................104
SECTION 10.11. Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries......................................106
SECTION 10.12. Limitation on Transactions with
Affiliates and Related Persons...............................108
SECTION 10.13. Limitation on Asset Dispositions.............................109
SECTION 10.14. Limitation on Issuances and Sales of
Capital Stock of Restricted
Subsidiaries.................................................110
SECTION 10.15. Limitation on Liens..........................................111
SECTION 10.16. Limitation on Issuance of Guarantees
of Debt by Restricted Subsidiaries...........................112
SECTION 10.17. Change of Control............................................113
SECTION 10.18. Provision of Financial Information...........................114
SECTION 10.19. Statement by Officers as to Default..........................115
SECTION 10.20. Waiver of Certain Covenants..................................115
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
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SECTION 10.21. Paying Agent.................................................115
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption..........................................116
SECTION 11.02. Applicability of Article.....................................117
SECTION 11.03. Election To Redeem; Notice to Trustee........................117
SECTION 11.04. Securities To Be Redeemed Pro Rata...........................118
SECTION 11.05. Notice of Redemption.........................................118
SECTION 11.06. Deposit of Redemption Price..................................119
SECTION 11.07. Securities Payable on Redemption Date........................120
SECTION 11.08. Securities Redeemed in Part..................................120
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations..........................120
SECTION 12.02. Defeasance and Discharge of Indenture........................122
SECTION 12.03. Defeasance of Certain Obligations............................125
SECTION 12.04. Application of Trust Money...................................127
SECTION 12.05. Repayment to Issuer..........................................127
SECTION 12.06. Reinstatement................................................128
SECTION 12.07. Insiders ..................................................128
TESTIMONIUM..................................................................129
SIGNATURES AND SEALS.........................................................129
ACKNOWLEDGMENTS...............................................................
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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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
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INDENTURE, dated as of February 27, 1998, between RSL COMMUNICATIONS PLC, a
United Kingdom corporation, as issuer (the "Issuer"), having its principal
office at Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxxx XX0 0XX, XXX
COMMUNICATIONS, LTD., a Bermuda corporation, as guarantor (the "Guarantor"),
having its principal office at Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda, and THE CHASE MANHATTAN BANK, a corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee").
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of its 9 1/8% Senior Notes due
2008 (the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Issuer has duly authorized the execution and
delivery of this Indenture. An aggregate principal amount of $200,000,000 of
Securities will be initially issued on the date hereof and, subject to the
conditions set forth herein, including Section 3.12, the Issuer may issue
subsequent to the date hereof Additional Securities, which may be issued in the
form of Registered Securities. The Securities may consist of Original
Securities, Registered Securities and/or Exchange Securities, each as defined
herein. The Original Securities, the Registered Securities and the Exchange
Securities shall rank pari passu with one another and shall together constitute
a single class of securities.
All things necessary (i) to make the Securities, when executed by the
Issuer and authenticated and delivered hereunder and duly issued by the Issuer,
the valid obligations of the Issuer, (ii) to make the Securities Guarantee, when
executed and delivered by the Guarantor hereunder, the valid obligation of the
Guarantor, and (iii) to make this Indenture a valid agreement of the Issuer and
the Guarantor, in accordance with 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
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proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (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 Issuer or the Guarantor, as
applicable, at the date hereof; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Acquired Debt" means, with respect to any specified Person, (i) Debt of
any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Subsidiary of such specified Person and (ii) Debt
secured by a Lien encumbering any asset acquired by such specified Person, which
Debt was not Incurred in
-2-
anticipation of, and was outstanding prior to, such merger,
consolidation or acquisition.
"Additional Amounts" has the meaning specified in Section 10.09.
"Additional Securities" means Securities issued subsequent to the date
hereof pursuant to Section 3.12 (exclusive of (x) any Exchange Securities issued
pursuant to Section 3.03 hereof in exchange for Original Securities issued on
the date hereof, or (y) any Substitute Securities).
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"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.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
a consolidation or merger or other sale of any such Subsidiary with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary of the specified Person, but excluding a disposition by a Subsidiary
of such Person to such Person or a Wholly Owned Subsidiary of such Person or by
such Person to a Wholly Owned Subsidiary of such Person or by a Restricted
Subsidiary to the Guarantor or a Restricted Subsidiary or by the Guarantor to a
Restricted Subsidiary) of (i) shares of Capital Stock or other ownership
interests of a Subsidiary of such Person; (ii) substantially all of the assets
of such Person or any of its Subsidiaries representing a division or line of
business (other than as part of a Permitted Investment); or
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(iii) other assets or rights of such Person or any of its Subsidiaries outside
of the ordinary course of business, provided in the case of each of the
preceding clauses (i), (ii) and (iii) that the aggregate consideration for such
transfer, conveyance, sale, lease or other disposition is equal to $2.0 million
or more in any 12-month period.
"Average Life" means, at any date of determination with respect to any
Debt, the quotient obtained by dividing (i) the sum of the products of (a) the
number of years from such date of determination to the dates of each successive
scheduled principal payment of such Debt and (b) the amount of such principal
payment by (ii) the sum of all such principal payments.
"beneficial interest" means an indirect beneficial interest in a Global
Security held through a corresponding Depositary Interest and shown on, and
transferred only through, records maintained in book-entry form by the
Depositary (with respect to the Participants) and its Participants.
"Board of Directors" means either the board of directors of the Guarantor
or the Issuer, as applicable, or any duly authorized committee of that board
duly authorized to act with respect to this Indenture from time to time.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Guarantor or the Issuer, as applicable, 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.
"Book-Entry Depositary" means The Chase Manhattan Bank in its capacity as
book-entry depositary pursuant to the terms of the Deposit Agreement, until a
successor Book-Entry Depositary shall have become such pursuant to the terms of
the Deposit Agreement, and thereafter "Book-Entry Depositary" shall mean such
successor Book-Entry Depositary.
"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
-4-
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 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 10.17.
"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 or not performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" for any period means
the Consolidated Net Income of the Guarantor and its Restricted Subsidiaries for
such period increased by the sum of (i) Consolidated Interest Expense of the
Guarantor and its Restricted Subsidiaries for such period, plus (ii)
Consolidated Income Tax Expense of the Guarantor and its Restricted Subsidiaries
for such period, plus (iii) the consolidated depreciation and amortization
expense included in the income statement of the Guarantor and its Restricted
Subsidiaries for such period,
-5-
plus (iv) any noncash expense related to the issuance to employees of the
Guarantor or any Restricted Subsidiary of the Guarantor of options to purchase
Capital Stock of the Guarantor or such Restricted Subsidiary, 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 Guarantor (calculated
separately for such Restricted Subsidiary in the same manner as provided above
for the Guarantor) that is subject to a restriction which prevents the payment
of dividends or the making of distributions to the Guarantor or another
Restricted Subsidiary of the Guarantor to the extent of such restriction.
"Consolidated Income Tax Expense" for any period means the aggregate
amounts of the provisions for income taxes of the Guarantor 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 interest expense
included in a consolidated income statement (excluding interest income) of the
Guarantor and its Restricted Subsidiaries for such period in accordance with
generally accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Debt discounts; (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 Stock dividends of the Guarantor
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 Guarantor and its Restricted
Subsidiaries, whether or not declared or paid; (vi) interest on Debt guaranteed
by the Guarantor and its Restricted Subsidiaries (but only to the extent such
interest is actually paid by the Guarantor or a Restricted Subsidiary); and
(vii) the portion of any Capital Lease Obligation paid during such period that
is allocable to interest expense; excluding, however, any premiums, fees and
expenses (and any amortization thereof) payable in connection with the offerings
of the Securities; all of the foregoing as determined on a consolidated basis
(without taking into account Unrestricted Subsidiaries) in conformity with
generally accepted accounting principles.
-6-
"Consolidated Net Income" for any period means the net income (or loss) of
the Guarantor 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 Guarantor or a Restricted Subsidiary of the Guarantor
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 Guarantor except to the extent of the amount of dividends or
other distributions actually paid to the Guarantor or a Restricted Subsidiary of
the Guarantor by such Person during such period, (c) gains or losses on Asset
Dispositions by the Guarantor or its Restricted Subsidiaries, (d) all
extraordinary gains and extraordinary losses, determined in accordance with
generally accepted accounting principles, (e) the cumulative effect of changes
in accounting principles, (f) noncash gains or losses resulting from
fluctuations in currency exchange rates and (g) the tax effect of any of the
items described in clauses (a) through (f) above.
"Consolidated Net Worth" of any Person means the stockholders' equity of
such Person, determined on a consolidated basis in accordance with generally
accepted accounting principles, less amounts attributable to Disqualified Stock
of such Person.
"Consolidated Tangible Assets" of any Person means the total amount of
assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Subsidiaries after deducting
therefrom all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such consolidated
balance sheet.
"Corporate Trust Office" means the principal office of the Trustee 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, XX 00000-0000.
"corporation" means a corporation, association, company, limited liability
company, joint-stock company or business trust.
-7-
"Credit Facility" means credit agreements, vendor financings or other
facilities or arrangements made available from time to time to the Guarantor and
its Restricted Subsidiaries by banks, other financial institutions and/or
equipment manufacturers for the Incurrence of Debt, including the private or
public issuance of debt securities or the provision of letters of credit and 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.
"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, the amount of (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in connection
with the acquisition of property, 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 and Currency Protection Agreements of such Person and (ix) every
obligation of the type referred to in clauses (i) through (viii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed to the extent the same is Guaranteed by such Person.
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 Guarantor or a
Wholly Owned Restricted Subsidiary of the Guarantor) thereof to the extent such
Person is liable
-8-
therefor, excluding amounts representative of yield or interest earned on such
investment or (c) any Disqualified Stock shall be the maximum fixed redemption
or repurchase price in respect thereof.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Definitive Security" means a certificated Security registered in the name
of the Holder thereof and issued in accordance with Section 3.05(d) hereof.
"Deposit Agreement" means the Note Deposit Agreement, dated as of the date
hereof, between the Issuer and The Chase Manhattan Bank, as Book-Entry
Depositary, with respect to the Global Securities, as amended from time to time
in accordance with the terms thereof.
"Depositary" means, with respect to the Securities issuable or issued in
whole or in part in the form of one or more Global Securities, The Depository
Trust Company for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Issuer shall designate from time to time
in an Officers' Certificate delivered to the Trustee.
"Depositary Interest" means a certificateless depositary interest
representing a 100% beneficial interest in a Global Security.
"Disqualified Stock" of any Person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Subsidiary of such Person or the holder thereof, in whole or in part, on or
prior to the final Stated Maturity of the Securities; provided, however, that
any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Preferred Stock upon the occurrence of a Change of
Control occurring prior to the final maturity of the Securities shall not
constitute Disqualified Stock if the change of control provisions applicable to
such Preferred Stock are no more favorable to the holders of such Preferred
Stock than the provisions applicable to the Securities contained in Section
10.17 and such Preferred Stock specifically provides that such Person will not
repurchase
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or redeem any such stock pursuant to such provisions prior to such Person's
repurchase of such Securities as are required to be repurchased pursuant to
Section 10.17.
"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" (or higher) according to Standard &
Poor's Ratings Service or Xxxxx'x Investors Service, Inc. at the time as of
which any investment or rollover therein is made.
"Equity Clawback" means the planned redemption by the Issuer of a portion
of its outstanding 12-1/4% Senior Notes due 2006 (the "Existing Notes") with a
portion of the proceeds of the Guarantor's initial public offering of Common
Stock, which closed in October, 1997. The Issuer intends to apply approximately
$101.25 million of the initial public offering proceeds to the redemption of the
Existing Notes.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended (or
any successor act), and the rules and regulations thereunder.
"Exchange and Registration Rights Agreement" means (i) with respect to the
Securities issued on the date hereof, the Exchange and Registration Rights
Agreement, dated as of February 27, 1998 among the Issuer, the Guarantor and the
Initial Purchasers, as purchasers, and the Holders from time to time as provided
therein, as such agreement may be amended from time to time and (ii) with
respect to any Additional Securities, any Exchange and Registration Rights
Agreement entered into among the Issuer, the Guarantor and the relevant initial
purchasers, as purchasers, and the Holders from time to time provided therein,
as the same may be amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the Securities
contained in Section 2.02.
"Exchange Offer Registration Statement" has the meaning set forth in the
form of the Securities contained in Section 2.02.
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"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.
"Existing Stockholders" means (A) R.S. Xxxxxx, Xxxxxx & Co., L.P., ("LGC"),
(B) partners in LGC and Xxxxxx Xxxxxx Ventures LLC and their Affiliates, in each
case as of the Closing Date, (C) Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxx, Xxxxx X. Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxx Xxxxxx and
Xxxxxx Xxxxxxx, (D) family members of any of the foregoing, (E) trusts, the only
beneficiaries of which are persons or entities described in clauses (A) through
(D) above and (F) partnerships which are controlled by the persons or entities
described in clauses (A) through (D) above.
"Expiration Date" has the meaning specified in the definition of "Offer to
Purchase".
"Global Security" means the security or securities issued initially in
bearer form that evidences all or part of the Securities and bears the legend
set forth in Section 2.02.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged and
which have a remaining weighted average life to maturity of not less than one
year 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 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" and "Guaranteeing"
shall
-11-
have meanings correlative to the foregoing); provided, however, that the
Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
Person pursuant to the applicable provisions of this Indenture and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person (i) who is the bearer of a Global Security (which
shall initially be the Book-Entry Depositary) or (ii) in whose name a Definitive
Security is registered in the Security Register.
"Incremental Paid-in Capital" means as of any date the cumulative aggregate
amount of the increase in paid-in capital (determined in accordance with
generally accepted accounting principles applied on a consistent basis) since
September 30, 1997, as determined based on the most recent unaudited quarterly
or audited annual financial statements of the Guarantor and its consolidated
subsidiaries filed with the Commission, as compared with the Guarantor's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1997.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume, enter
into a Guarantee in respect of 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.
"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.
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"Indirect Participant" means a Person who holds an interest through a
Participant in a Depositary Interest issued by the Book-Entry Depositary to the
Depositary.
"Initial Purchasers" means Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Chase Securities Inc., X.X. Xxxxxx Securities Inc.
and SBC Warburg Dillon Read Inc.
"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 Guarantor or any of its Subsidiaries in the ordinary course of
business and commercially reasonable extensions of trade credit. Without
limiting the foregoing, the term "Investment" shall include (i) the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair
market value of the Capital Stock (or any other Investment), held by the
Guarantor or any of its Restricted Subsidiaries, of (or in) any Person that has
ceased to be a Restricted Subsidiary. For purposes of the definition of
"Unrestricted Subsidiary" and Section 10.10, (i) "Investment" shall include the
fair market value of the assets (net of liabilities (other than liabilities to
the Guarantor or any of its Restricted Subsidiaries)) of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary, (ii) the fair market value of the assets (net of
liabilities (other than liabilities to the Guarantor or any of its Restricted
Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary shall be considered a reduction
in
-13-
outstanding Investments and (iii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer. Notwithstanding the foregoing, an acquisition of assets
(including, without limitation, Capital Stock or rights to acquire Capital
Stock) by the Guarantor or any of its Restricted Subsidiaries shall be deemed
not to be an Investment to the extent that the consideration therefor consists
of Common Stock of the Guarantor.
"Issuer" means the Person named as the "Issuer" 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 "Issuer" shall mean such
successor Person.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by the Issuer's Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"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), 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).
"Listing Failure" has the meaning specified in Section 10.09.
"Marketable Securities" means: (i) Government Securities; (ii) any
certificate of deposit maturing not more than 270 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution; (iii)
commercial paper maturing not more than 270 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Guarantor) with a
rating, at the time as of which any investment therein is made, of "A-1" (or
higher) according to Standard & Poor's Ratings Service or "P-1" (or higher)
according to Xxxxx'x Investor Service, Inc.; (iv) any banker's acceptances or
money market deposit accounts issued or offered by an Eligible Institution;
-14-
(v) time deposits, certificates of deposit, bank promissory notes and bankers'
acceptances maturing not more than 180 days after the acquisition thereof and
guaranteed or issued by any of the ten largest banks (based on assets as of the
immediately preceding December 31), organized under the laws of any jurisdiction
in which one of the Restricted Subsidiaries does business or any foreign country
recognized by the United States and which are not under intervention, bankruptcy
or similar proceeding, not to exceed $10 million outstanding at any one term;
and (vi) any fund investing exclusively in investments of the types described in
clauses (i) through (iv) above.
"Maturity", when used with respect to any Security, means the date on which
the principal of such 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 amounts received
by way of sale or discounting of any note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Debt or other obligations relating to such
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 required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Subsidiaries on any Debt which is secured by such 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 Subsidiaries of such Person as a result of such
Asset Disposition and (iv) appropriate amounts to be provided by such Person or
any Subsidiary thereof, as the case may be, as a reserve in accordance with
generally accepted accounting principles against any liabilities associated with
such assets and retained by such Person or any 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 of such Person, in
-15-
its reasonable good faith judgment; provided, however, that any reduction in
such reserve within 12 months following the consummation of such Asset
Disposition will be treated for all purposes of the Indenture and the Securities
as a new Asset Disposition at the time of such reduction with Net Available
Proceeds equal to the amount of such reduction.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Issuer by first class mail, postage prepaid, to each Holder of
Securities at his address appearing in the related 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 Issuer shall
notify in writing 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
Issuer's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer. The Offer shall contain information concerning the
business of the Guarantor and its Subsidiaries which the Guarantor and Issuer in
good faith believe 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 Guarantor'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
Issuer to make the Offer to Purchase), (iii) if applicable, appropriate pro
forma financial information concerning the Offer to Purchase and the events
requiring the Issuer to make the Offer to Purchase and (iv) any other
information required by applicable law to be included therein). The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender
-16-
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 Issuer pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been determined
pursuant to the Section hereof requiring the Offer to Purchase) (the
"Purchase Amount");
(d) the purchase price to be paid by the Issuer for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to the 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 Issuer 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 Issuer or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
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(j) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Issuer (or their 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 Issuer 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 Issuer 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);
and
(l) that in the case of any Holder whose Security is purchased only in
part, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Guarantor or the Issuer, as applicable, and delivered to the Trustee and
containing the statements provided for in Section 1.02. One of the officers
signing an Officers' Certificate given pursuant to Section 10.19 shall be the
principal executive, financial or accounting officer of the Guarantor.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
counsel for the Guarantor or the
-18-
Issuer, and who shall be acceptable to the Trustee, and containing the
statements provided for in Section 1.02.
"Original Securities" means all Securities that are subject to an Exchange
and Registration Rights Agreement, other than Exchange Securities issued in
exchange therefore.
"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 canceled by the Trustee or delivered to the
Trustee for cancelation;
(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 Issuer) in trust or set aside and segregated in trust by
the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 3.06 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 Issuer;
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 Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer 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
-19-
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 Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to the Depositary, shall include Euroclear and Cedel).
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer.
"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 the Guarantor or a
Restricted Subsidiary, (ii) any Investment in any Person as a result of which
such Person becomes a Restricted Subsidiary of the Guarantor or upon the making
of which such Person will be merged or consolidated with or into or transfer all
or substantially all of its assets to the Guarantor or a Restricted Subsidiary,
(iii) any Investment in Marketable Securities, (iv) securities or other
Investments received in settlement of debts created in the ordinary course of
business and owing to the Guarantor or any Restricted Subsidiary, or as a result
of foreclosure, perfection or enforcement of any Lien, or in satisfaction of
judgments, including in connection with any bankruptcy proceeding or other
reorganization of another Person, (v) securities or other Investments received
as consideration in sales or other dispositions of property or assets, including
Asset Dispositions made in compliance with Section 10.13 and (vi) other
Investments not in excess of $50 million in the aggregate at any time
outstanding.
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"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 Guarantor'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 Guarantor's and its
Restricted Subsidiaries' property or assets when taken as a whole, or materially
impair the use of such assets and property in the operation of its business; (c)
Liens with respect to assets of a Subsidiary granted by such Subsidiary to the
Guarantor to secure Debt owing to the Guarantor; (d) pledges and deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of statutory obligations; (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
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 Guarantor
or its Restricted Subsidiaries; (g) Liens on Capital Stock of Restricted
Subsidiaries securing obligations not exceeding $75 million at any time
outstanding of the Guarantor or any Restricted Subsidiary to repurchase or
redeem shares of Capital Stock of such Restricted Subsidiary held by Persons who
are not Affiliates or Related Persons of the Guarantor; (h) Liens arising out of
judgments or awards against the Guarantor or any Restricted Subsidiary with
respect to which the Guarantor or such Restricted Subsidiary is prosecuting an
appeal or proceeding for review and the Guarantor or such Restricted Subsidiary
is maintaining adequate reserves in accordance with generally accepted
accounting principles; and (i) any interest or title of a lessor in the property
subject to any lease other than a Capital Lease.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or agency or political subdivision thereof or any other entity.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 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.
"Purchase Agreement" means (i) with respect to the Securities initially
issued on the date hereof, the Purchase Agreement, dated as of February 24,
1998, between the Issuer, the Guarantor and the Initial Purchaser named therein,
as such agreement may be amended from time to time, and (ii) with respect to any
Additional Securities, any purchase or underwriting agreement entered into by
the Issuer, the Guarantor and the initial purchasers or underwriters with
respect thereto.
"Purchase Money Debt" means Debt of the Guarantor (including Acquired Debt
and Debt represented by Capital Lease Obligations, 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 Guarantor or
any Restricted Subsidiary of the Guarantor of any Telecommunications Assets of
the Guarantor or any Restricted Subsidiary of the Guarantor, 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.
"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 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
Service 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 at least A-1 from Standard & Poor's Ratings
Service or at least P-1 from Xxxxx'x Investors Service, Inc.; 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
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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.
"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 Exchange Securities and all other Securities
sold or otherwise disposed of pursuant to an effective registration statement
under the Securities Act, including, as applicable, (i) all Original Securities
sold pursuant to a Resale Registration Statement, (ii) all Exchange Securities,
and (iii) all Additional Securities initially offered and sold pursuant to a
registration statement under the Securities Act, together with any respective
Successor Securities.
"Regular Record Date" for the interest payable on any Interest Payment Date
means February 15 or August 15 (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 2.01.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Security
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set forth in Section 2.02 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities sold pursuant to Regulation
S, which are required pursuant to Section 3.05(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) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the
outstanding equity interest in such Person) or (b) 5% or more of the combined
outstanding voting power of the Voting Stock of such Person, except that, for
purposes of Section 10.12, Related Person means any other Person directly or
indirectly owning 10% or more of the combined outstanding voting power of the
Voting Stock of such Person (or, in the case of a Person that is not a
corporation, 10% or more of the outstanding equity interest in such Person).
"Resale Registration Statement" has the meaning set forth in the Form of
the Securities contained in Section 2.02.
"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 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 2.01.
"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.
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"Restricted Securities" means all Securities required pursuant to Section
3.05(c) to bear any Restricted Securities Legend. Such term includes any
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 2.02 to be placed upon each Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Guarantor other than an
Unrestricted Subsidiary.
"RSLNA" has the meaning specified in Section 1.14.
"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 all Securities sold pursuant to Rule 144A,
which are required pursuant to Section 3.05(c) to bear a Restricted Securities
Legend. Such term includes the Restricted Global Security.
"Securities" has the meaning specified in the first paragraph of the
recitals to this instrument.
"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.
"Securities Guarantee" means the Securities Guarantee issued by the
Guarantor in accordance with Article IV hereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Senior Discount Securities" means the 101/8% Senior Discount Notes due
2008 issued pursuant to the Senior Discount Securities Indenture.
"Senior Discount Securities Indenture" means the indenture dated as of the
date hereof with respect to the
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10 1/8% Senior Discount Securities due 2008 among the Issuer, the Guarantor and
The Chase Manhattan Bank, as trustee.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Guarantor, accounted for more than 10% of the
consolidated revenues of the Guarantor and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Guarantor and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Guarantor for such fiscal year.
"Special Interest" has the meaning set forth in the form of Security
contained in Section 2.02. Unless the context otherwise requires, references
herein to "interest" on the Securities shall include Special Interest.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"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 is due and payable.
"Step-Down Date" has the meaning set forth in the form of the Security
contained in Section 2.02.
"Step-Up" has the meaning set forth in the form of the Security contained
in Section 2.02.
"Strategic Investor" means a corporation, partnership or other entity
engaged in the Telecommunications Business that has, or 80% or more of the
Voting Stock of which is owned by a Person that has, an equity market
capitalization or paid in capital, at the time of any Investment by such
corporation, partnership or other entity in a Restricted Subsidiary pursuant to
clause (iv)(2) of Section 10.14, in excess of $100 million.
"Subordinated Debt" means Debt of the Guarantor or any Restricted
Subsidiary 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
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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 written 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 Guarantor or such Restricted Subsidiary 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;
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 Guarantor or such Restricted Subsidiary (including any redemption,
retirement or repurchase which is contingent upon events or circumstances, but
excluding any retirement required by virtue of acceleration of such Debt upon an
event of default thereunder), in each case prior to the final Stated Maturity of
the Securities or (y) permit redemption or other retirement (including pursuant
to an offer to purchase made by the Guarantor or such Restricted Subsidiary) of
such other Debt at the option of the 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 Guarantor or such Restricted Subsidiary) which is conditioned upon a
change of control of the Guarantor pursuant to provisions substantially similar
to those described under Section 10.17 (and which shall provide that such Debt
will not be repurchased pursuant to such provisions prior to the Guarantor's or
such Restricted Subsidiary's repurchase of the Securities required to be
repurchased pursuant to the provisions described under Section 10.17).
"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
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at least a majority ownership and power to direct the policies, management and
affairs thereof. An 80% or more owned Subsidiary of the Guarantor is (i) a
corporation 80% or more of the combined voting power of the outstanding Voting
Stock, and more than 80% of the Capital Stock or other ownership interests, of
which is owned, directly or indirectly, by the Guarantor or by one or more other
Subsidiaries of the Guarantor or by the Guarantor and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which the
Guarantor, or one or more other Subsidiaries of the Guarantor or the Guarantor
and one or more other Subsidiaries of the Guarantor, directly or indirectly, has
at least an 80% ownership interest and power to direct the policies, management
and affairs thereof.
"Subsidiary Guarantor" means a Subsidiary of the Guarantor that has
unconditionally guaranteed, by supplemental indenture substantially similar in
form to Article IV hereof and otherwise satisfactory to the Trustee, the payment
in full of the principal of (and premium, if any) and interest on the
Securities.
"Substitute Securities" has the meaning specified in Section 3.01.
"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 3.06 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.
"Tax" means any tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and any other liabilities related
thereto).
"Taxing Authority" means any government or political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
"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, including a
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majority of the Voting Stock of a Person engaged in the 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, (ii) creating, developing or marketing
communications related network equipment, software and other devices for use in
a Telecommunications Business or (iii) evaluating, participating or pursuing any
other activity or opportunity that is primarily related to those identified in
(i) or (ii) above; provided that the determination of what constitutes a
Telecommunications Business shall be made in good faith by the Board of
Directors of the Guarantor.
"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 (i) any Subsidiary of the Guarantor that at
the time of determination shall be designated an Unrestricted Subsidiary of the
Guarantor by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary of the Guarantor) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Guarantor or any Restricted Subsidiary; provided that (A) any Guarantee
by the Guarantor or any Restricted Subsidiary of any Debt of the Subsidiary
being so designated shall be deemed an "Incurrence" of such Debt and an
"Investment" by the Guarantor or such Restricted Subsidiary (or both, if
applicable) at the time of such designation, in each case, to the extent such
Debt is so Guaranteed by the Guarantor or such Restricted Subsidiary;
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(B) either (I) the Subsidiary to be so designated has total assets of $1,000 or
less or (II) if such Subsidiary has assets greater than $1,000, such designation
would be permitted under Section 10.10 and (C) if applicable, the Incurrence of
Debt and the Investment referred to in clause (A) of this proviso would be
permitted under Sections 10.08 and 10.10. The Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
immediately after giving effect to such designation (x) the Guarantor could
Incur $1.00 of additional Debt under the first paragraph of Section 10.08 and
(y) no Default or Event of Default shall have occurred and be continuing. Any
such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Vice President", when used with respect to the Issuer, the Guarantor 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 Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Voting Stock or other ownership interests (other than
directors' qualifying shares) of which shall at the time be owned by such Person
or by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer and Guarantor 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 Issuer or
the Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements
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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:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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 Issuer or Guarantor 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 Issuer or Guarantor submitted therewith stating the information on which
counsel is relying, unless such counsel knows, or in the exercise of reasonable
care
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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.
SECTION 1.04. 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 Issuer or the Guarantor. 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 6.01)
conclusive in favor of the Trustee and the Issuer and Guarantor, 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 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
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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, the Issuer or the Guarantor in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Issuer 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 Issuer 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 Issuer 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 7.01) 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 Issuer 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 canceled 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 Issuer, 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 1.06.
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
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(i) any Notice of Default, (ii) any declaration of acceleration referred to in
Section 5.02, (iii) any request to institute proceedings referred to in Section
5.07(2) or (iv) any direction referred to in Section 5.12. 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,
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 canceled 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 Issuer's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Issuer in writing and to each
Holder of Securities in the manner set forth in Section 1.06.
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 1.06, 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
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duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee, Issuer and Guarantor. 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 Issuer or the Guarantor shall
be sufficient for every purpose hereunder if delivered in writing to a
Responsible Officer of the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Issuer or the Guarantor as applicable, addressed to it, if prior to
receipt by the Trustee of written notice pursuant to this Section 1.05 of a
change of address, at the address of its principal office specified in the
first paragraph of this instrument, or, if after receipt by the Trustee of
written notice pursuant to this Section 1.05 of a change of address, at
such other address as may be previously furnished in writing to the Trustee
by the Issuer or the Guarantor, as applicable.
SECTION 1.06. 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 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
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precedent to the validity of any action taken in reliance upon such waiver.
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 1.07. 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 1.08. 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 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. 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 1.12. Governing Law. This Indenture, the Securities and the
Securities Guarantee shall be governed by
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and construed in accordance with the laws of the State of New York.
SECTION 1.13. 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.
SECTION 1.14. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Indenture, each of the Issuer
and the Guarantor (i) represents that it has designated and appointed RSL
Communications N. America, Inc. ("RSLNA"), as its authorized agent upon which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities, the Securities Guarantee or this Indenture that may
be instituted in any Federal or state court in the State of New York, Borough of
Manhattan, or brought under Federal or state securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and that RSLNA has accepted such designation, (ii) submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, (iii) agrees that service of process upon RSLNA and written notice
of said service to the Issuer or the Guarantor, as applicable, (mailed or
delivered to its President at its principal office as specified in Section 1.05)
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding, and (iv) agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of RSLNA in full force
and effect so long as any of the Securities shall be outstanding.
To the extent that the Issuer or the Guarantor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, each
of the Issuer and the Guarantor hereby irrevocably waives such immunity in
respect of its
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obligations under this Indenture, the Securities Guarantee and the Securities,
to the extent permitted by law.
ARTICLE II
Security Forms
SECTION 2.01. 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.
Upon their original issuance, Rule 144A Securities shall be issued in the
form of a Global Security in bearer form without interest coupons, which shall
be deposited on behalf of the Initial Purchasers with the Book-Entry Depositary
at its New York corporate trust office, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its 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 a Global Security in bearer form without interest coupons,
which shall be deposited on behalf of the Initial Purchasers with the Book-Entry
Depositary at its New York corporate trust office, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its Successor Securities which are Global Securities other than
the Restricted Global Security, are collectively herein called the "Regulation S
Global Security".
Upon receipt of the Restricted Global Security and the Regulation S Global
Security authenticated and delivered by the Trustee, the Book-Entry Depositary
shall issue to the Depositary a Depositary Interest in each such Global Security
by recording the Depository Interest in the register of the Book-Entry
Depositary in the name of Cede & Co., as nominee of the Depositary. Ownership of
beneficial interests shall be limited to Participants, including
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Euroclear and Cedel, and Indirect Participants. Upon the issuance of the
Depositary Interest in such Global Security to the Depositary, the Depositary
shall credit, on its internal book-entry registration and transfer system, its
Participant's accounts with respective interests owned by such Participants.
Neither the Depositary nor its Participants shall have any rights either
under this Indenture or under any Global Security with respect to such Global
Security held on their behalf by the Book-Entry Depositary, and the Book-Entry
Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer
or the Trustee as the absolute owner of such Global Security for the purpose of
receiving payment of or on account of the principal of (premium, if any) and,
subject to the provisions of this Indenture, interest on the Global Security and
for all other purposes. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Book-Entry Depositary or impair, as between the Book-Entry
Depositary and the Depositary and its Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of an owner of
a beneficial interest in any 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.
SECTION 2.02. Form of Face of Security. [If a Global Security issued in
bearer form, then insert -- THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE BOOK-ENTRY
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. THIS SECURITY IS NOT EXCHANGEABLE
IN WHOLE OR IN PART OR TRANSFERABLE IN WHOLE OR IN PART EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If Restricted Securities, then insert -- THE SECURITIES EVIDENCED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER
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WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTION THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IF AVAILABLE), OR (5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS.]
[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.]
9 1/8% SENIOR NOTES DUE 2008
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 74972E AA 6]
[IF REGULATION S SECURITY - CUSIP NO. G7703A AA 3]
[IF REGULATION S GLOBAL SECURITY - ISIN NO. - USG7703A AA 37]
No. __________ $_______________
RSL Communications PLC, a United Kingdom corporation (herein called the
"Issuer", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [If this
Security is a Global Security issued in bearer form, then insert: the bearer
hereof] [If this Security is not a Global Security issued in bearer form, then
insert: _____________, 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 by adjustments made on the records of the Trustee
hereinafter referred to in accordance with the Indenture)] on March 1, 2008, and
to pay interest thereon from February 27, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on March 1 and September 1 in each year, commencing September 1, 1998 at the
rate of 9 1/8%
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per annum, until the principal hereof is paid or made available for payment [If
Original Securities, then insert: provided, however, that if the Issuer has not
filed a registration statement (the "Exchange Offer 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 Special 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")), and (i) the Exchange Offer has
not been completed by 270 days after the date of the Indenture (if the Exchange
Offer is then required to be made pursuant to the Exchange and Registration
Rights Agreement (the "Exchange and Registration Rights Agreement"), by and
between the Issuer, the Guarantor, as defined in the Indenture, the Purchasers
(as defined therein) and the Holders from time to time of the Securities) or
(ii) any Resale Registration Statement required to be filed by the Exchange and
Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically permitted therein)
without being succeeded promptly by an additional registration statement filed
and declared effective upon the terms and conditions set forth in the Exchange
and Registration Rights Agreement (each such event referred to in clauses (i)
and (ii), a "Registration Default"), then interest will accrue (in addition to
the 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, from the
period from and including the date of occurrence of the Registration Default to
but excluding such date (the "Step-Down Date") as no Registration Default is in
effect (commencing on which date such interest rate will be restored to its
initial rate). Interest accruing as a result of the Step-Up is referred to
herein as "Special Interest." Accrued Special Interest, if any, shall be paid
semi-annually on March 1 and September 1 in each year; and the amount of accrued
Special Interest shall be determined on the basis of the number of days actually
elapsed. Any accrued and unpaid interest (including Special Interest) on this
Security upon the issuance of an Exchange Security (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 Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof [if not a Global Security in bearer form, insert: on the related Regular
Record Date].] The interest
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so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to [If this Security is a
Global Security issued in bearer form, then insert: the bearer hereof on the
Interest Payment Date] [If this Security is not a Global Security issued in
bearer form, then insert: 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 February 15 or August 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date]. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Interest Payment Date and
may either be paid to [If this Security is a Global Security issued in bearer
form, then insert: the bearer hereof on the Special Payment Date] [If this
Security is not a Global Security issued in bearer form, then insert: 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.
Under certain circumstances described in the Indenture, the Issuer (or the
Guarantor) also shall pay Additional Amounts to the Holders of Securities equal
to an amount that the Issuer or Guarantor, as the case may be, may be required
to withhold or deduct for or on account of Taxes imposed by a Taxing Authority
within the United Kingdom or Bermuda, as the case may be, from any payment made
under or with respect to the Securities or the Securities Guarantee.
In the case of a default in payment of principal of and premium, if any, on
this Security 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 111/8% 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.
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[If this Security is a Global Security issued in bearer form, then insert:
The Issuer will pay interest, if any, on this Security to the bearer of this
Security. The Holder of this Security must surrender this Security to the
Trustee to collect principal payments.] 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 Issuer 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 Issuer 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 Issuer payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address [If this Security is
a Global Security in bearer form, then insert: is specified by the bearer
hereof] [If this Security is a Definitive Security, then insert: 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.
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.
-43-
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by
----------------------
Name:
Title:
by
----------------------
Name:
Title:
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SECTION 2.03. Form of Reverse of Security. This Security is one of a duly
authorized issue of Securities of the Issuer designated as its 9 1/8% Senior
Notes due 2008 (the "Securities") issued under an Indenture, dated as of
February 27, 1998 (herein called the "Indenture"), between the Issuer, RSL
Communications, Ltd., as the guarantor (the "Guarantor") and The Chase Manhattan
Bank, as trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture). 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 Issuer, the
Guarantor, 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 March 1, 2003 and prior to
maturity, as a whole or in part, at the election of the Issuer, at the following
Redemption Prices (expressed as percentages of the principal amount) plus
accrued interest to but excluding the Redemption Date (subject to the right of
Holders [If this Security is not a Global Security issued in bearer form,
insert: on the relevant Regular Record Date] to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), if redeemed
during the 12-month period beginning March 1, of each of the years indicated
below:
Redemption
Year Price
---- -----
2003 104.562%
2004 103.042%
2005 101.521%
2006 and 100.000%
thereafter
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be
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payable to the Holders of such Securities, or one or more Predecessor Securities
[If this Security is not a Global Security issued in bearer form, insert:, of
record at the close of business on the relevant Record Dates referred to on the
face hereof,] all as provided in the Indenture.
In addition, at any time prior to March 1, 2001, in the event that the
Guarantor receives net cash proceeds from the public or private sale of its
Common Stock (other than Disqualified Stock), the Issuer (to the extent it
receives such proceeds and has not used such proceeds, directly or indirectly,
to redeem or repurchase other securities pursuant to optional redemption
provisions) may, at its option, apply an amount equal to any such net cash
proceeds or any portion thereof to redeem, from time to time, Securities in a
principal amount of up to an aggregate amount equal to 33 1/3% of the original
principal amount of the Securities; provided, however, that Securities in an
amount equal to at least 66 2/3% of the original principal amount of the
Securities remain outstanding after each redemption. Each redemption must occur
on a Redemption Date within 180 days of the related sale 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, in amounts
of $1,000 or an integral multiple of $1,000 at a Redemption Price of 109.125% of
the principal amount of the Securities plus accrued interest to but excluding
the Redemption Date.
Furthermore, in the event that (i) the Guarantor or the Issuer has become
or would become obligated to pay any Additional Amounts as a result of (x)
changes affecting withholding tax laws or (y) a Listing Failure provided that
the Issuer has used reasonable best efforts to list and maintain a listing of
the Securities on a "recognized stock exchange" (within the meaning of Section
841 of the U.K. Income and Corporation Taxes Act 1988) (as provided for in
Section 10.09), and (ii) the Guarantor and the Issuer are unable to avoid the
requirement to pay such Additional Amounts by taking reasonable measures
available to them (including, without limitation, the Guarantor making payments
directly to holders under the Securities Guarantee, unless such payment is
likely to result in adverse consequences to the Issuer or the Guarantor), then
the Issuer may redeem all, but not less than all, of the Securities at any time
at 100% of the principal amount thereof on the Redemption Date, together with
accrued interest thereon, if any, to but excluding the Redemption Date. Prior to
the publication of the notice of redemption in accordance with the foregoing,
the Issuer shall deliver
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to the Trustee an officer's certificate stating that the Issuer is entitled to
effect such redemption based on a written opinion of independent tax counsel or
accounting firm reasonably satisfactory to the Trustee.
The Securities do not have the benefit of any sinking fund obligations.
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
Issuer as a result of any Asset Disposition, the Issuer 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 cancelation hereof.]
[If a Global Security insert: In the event of a deposit or withdrawal of a
beneficial 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, and shall instruct the Book-Entry Depositary to make a similar
notation in its book-entry system to the corresponding Depositary Interest.]
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, the
Registered Securities and the Exchange Securities shall constitute one series
for all
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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
Issuer, the Guarantor and the rights of the Holders of the Securities under the
Indenture at any time by the Issuer, the Guarantor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Issuer or the Guarantor 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.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer, 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.
[If this Security is not a Global Security issued in bearer form, then
insert: 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 Issuer 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 Issuer 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.]
The Global Securities are issuable only in bearer form without coupons in
denominations of $1,000 and any integral multiple thereof. Definitive Securities
shall be issuable in registered form without interest coupons in
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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.
[If this Security is a Global Security issued in bearer form, then insert:
The bearer of this Security shall be treated as the owner of this Security for
all purposes.]
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
[If this Security is not a Global Security issued in bearer form, insert:
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor,
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.]
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months [If Original Securities, then insert: ; provided,
however, that Special Interest shall be computed on the basis of a 365- or
366-day year, as the case may be, and the number of days actually elapsed].
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 by the Issuer pursuant
to Section 10.13 or 10.17 of the Indenture, check the box:
|_|
If you want to elect to have only a part of this Security purchased by the
Issuer pursuant to Section 10.13 or 10.17 of the Indenture, state the amount:
$___________
Dated:________________ Your Signature:____________________
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(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 Security Registrar
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 2.04. Form of Trustee's Certificate of Authentication. This is one
of the Securities referred to in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
by ___________________________
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. (a) The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $200,000,000 issued on the date hereof and any Additional Securities
that may be issued from time to time pursuant to Section 3.12, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 3.04, 3.05,
3.06, 9.06 or 11.08 or in connection with an Offer to Purchase pursuant to
Section 10.13 or 10.17 (all Securities referred to in this exception being
deemed "Substitute Securities"). The Issuer 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 3.03, included in an Officers'
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Certificate delivered to the Trustee, in authorized denominations in exchange
for a like principal amount of Original Securities (including, if applicable,
Additional Securities). Upon any such exchange the Original Securities shall be
canceled in accordance with Section 3.09 and shall no longer be deemed
Outstanding for any purpose.
The Securities shall be known and designated as the "9 1/8% Senior Notes
due 2008" of the Issuer. The Stated Maturity of the Securities shall be March 1,
2008. The Securities shall bear interest at the rate of 9 1/8% per annum, from
February 27, 1998 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 March 1 and September 1, commencing September 1, 1998, 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 Special
Interest to but excluding the Step-Down Date. Accrued Special Interest, if any,
shall be paid in cash in arrears semi-annually on March 1 and September 1 in
each year, and the amount of accrued Special Interest shall be determined on the
basis of the number of days actually elapsed.
With respect to Global Securities, the Issuer will pay interest, if any, on
such Securities to the bearers of such Securities. Holders of such Global
Securities must surrender such Securities to the Trustee to collect principal
payments. 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 Issuer for such purpose; provided,
however, that at the option of the Issuer 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 Issuer pursuant to an
Offer to Purchase as provided in Sections 10.13 and 10.17 of the Indenture.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall not have the benefit of any sinking fund obligations.
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The Securities shall be subject to defeasance at the option of the Issuer
as provided in Article Twelve.
The Securities are guaranteed by the Guarantor as set forth in Article IV
of this Indenture.
(b) With respect to any Securities issued after the date hereof (except for
Exchange Securities or Substitute Securities) there shall be established in or
pursuant to a Board Resolution, and subject to Section 3.03, set forth, or
determined in a manner provided in an Officers' Certificate, prior to the
issuance of such Securities:
(i) the aggregate principal amount of such Securities which may be
authenticated and delivered under this Indenture at such time;
(ii) the date from which interest on such Securities shall accrue;
(iii) whether such Securities shall be initially issued as Original
Securities (in the form of Restricted Securities and/or Regulation S
Securities) that are subject to an Exchange and Registration Rights
Agreement, or instead shall be issued in the form of Registered Securities
pursuant to a registration statement under the Securities Act; and
(iv) the price at which such Additional Securities will initially be
sold to the public (exclusive of any underwriter).
A copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Issuer and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the trust indenture
supplemental hereto setting forth the terms of such Securities.
Unless the context otherwise requires, the Original Securities, the
Additional 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 3.02. Denominations. The Global Securities shall be issuable in
bearer form without coupons and only in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. Definitive Registered
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Securities shall be issuable in registered form without interest coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Issuer by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. 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 officers of the Issuer shall bind the Issuer,
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 Issuer may deliver Securities executed by the Issuer to the
Trustee for authentication, together with a Issuer Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Issuer
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise. In addition, in the case of the original issuance of
any Additional Securities, the Company shall deliver the Officers' Certificate
referred to in Section 3.01(b).
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 Issuer may deliver Exchange Securities
executed by the Issuer to the Trustee for authentication, together with an
Issuer Order for the authentication and delivery of such Exchange Securities and
a like principal amount of Original Securities for cancelation in accordance
with Section 3.09 of this Indenture, and the Trustee in accordance with the
Issuer 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 6.01) shall be fully protected in relying upon,
an Opinion of Counsel stating,
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(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, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities, the Issuer may execute, and upon Issuer 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 Issuer 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 Issuer designated pursuant to Section 10.02, without charge to
the Holder. Upon surrender for cancelation of any one or more temporary
Securities, the Issuer 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.
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SECTION 3.05. Registration, Registration of Transfer and Exchange. (a) The
Issuer 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 10.02 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of Definitive Securities and of transfers of such Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering such
Securities and transfers of such 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 registration of transfer of any Definitive Security
at an office or agency of the Issuer designated pursuant to Section 10.02 for
such purpose in accordance with the terms hereof, the Issuer 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 3.05, Securities may be exchanged for other Securities of any authorized
denominations and of a like tenor and aggregate principal amount, upon surrender
of such Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Issuer 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 Issuer, evidencing the same
debt, and (subject to the provisions in the Original Securities regarding the
payment of Special 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 Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Security Registrar duly
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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 Issuer 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 3.04, 3.05(d), 9.06 or 11.08 or in accordance
with any Offer to Purchase pursuant to Section 10.13 or 10.17 not involving any
transfer.
The Issuer 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 11.04 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 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
3.05(b) shall be made only in accordance with this Section 3.05(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)(v) 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
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Global Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar but subject to Clause (b)(v) below, shall
reduce or cause to be reduced the principal amount of the Restricted Global
Security and increase the principal amount of the Regulation S Global
Security by such specified principal amount as provided in Section 3.05(e).
(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 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 or cause to be reduced the principal amount of the Regulation S
Global Security and increase the principal amount of the Restricted Global
Security by such specified principal amount as provided in Section 3.05(e).
(iii) Definitive Security to Definitive Security. A Security that is a
Definitive Security may be transferred, in whole or in part, to a Person
who takes delivery in the form of another Security that is a Definitive
Security as provided in Section 3.05(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
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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 3.05(c)).
(iv) Exchanges between Global Security and Definitive Security. A
beneficial interest in a Global Security may be exchanged for a Security
that is a Definitive Security as provided in Section 3.05(d), provided
that, if such interest is a beneficial interest in the Restricted Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security and such exchange is to occur during the Restricted Period,
then such interest shall be exchanged for a Restricted Security (subject in
each case to Section 3.05(c)).
(v) Regulation S Global Security to be Held Through Euroclear or Cedel
during Restricted Period. The Issuer 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)(v) shall not prohibit any transfer
or exchange of such an interest in accordance with Clause (b)(ii) above.
(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 3.05(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 3.05(c), a new
Security which is a Definitive
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Security and is issued in exchange for 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 3.05(b)(iii) or (iv) 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 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 III;
(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
Issuer'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 Issuer, shall
authenticate and deliver such a new Security as provided in this Article
III; and
(vi) notwithstanding the foregoing provisions of this Section 3.05(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 Issuer
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 Issuer, shall authenticate and deliver a
new Security bearing a
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Restricted Securities Legend in exchange for such Successor Security as
provided in this Article III.
(d) Exchanges of Global Security for Definitive Security. Transfers of
Global Securities shall be by delivery. The Book-Entry Depositary and the Issuer
have agreed that the Global Securities shall only be delivered in the
circumstances described in the Deposit Agreement. Notwithstanding any other
provision in this Indenture, no Global Security may be exchanged in whole or in
part for Definitive Securities unless (i) the Depositary notifies the Issuer or
the Book-Entry Depositary in writing that it (or its nominee) is unwilling or
unable to continue to act as depositary or ceases to be a clearing agency
registered under the Exchange Act, and, in either case, a successor depositary
registered as a clearing agency under the Exchange Act is not appointed by the
Issuer within 90 days, (ii) at any time if the Issuer determines that the Global
Securities (in whole but not in part) should be exchanged for Definitive
Securities; provided, that (x) such exchange is required by (A) any applicable
law or (B) any event beyond the Issuer's control or (y) payments of interest on
any Global Security, Depositary Interest or beneficial interest are, or would
become, subject to any deduction or withholding for taxes, (iii) at any time
after the consummation of the Exchange Offer, if the owner of a beneficial
interest requests such exchange in writing delivered to the Depositary and
through the Depositary to the Book-Entry Depositary and the Trustee, or (iv) if
the Book-Entry Depositary is at any time unwilling or unable to continue as
Book-Entry Depositary and a successor Book-Entry Depositary is not appointed by
the Issuer within 90 days. Upon the occurrence of any of the preceding events,
Definitive Securities shall be issued in such names as the Book-Entry Depositary
shall instruct the Trustee based on the instructions of the Depositary.
(e) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Book-Entry
Depositary or its nominee to the Trustee, as Security Registrar, for exchange or
cancelation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancelation as provided in this Article III or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal
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to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made by the Book-Entry Depositary as directed by the Trustee in such
Book-Entry Depositary's book-entry system to the corresponding Depositary
Interest, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 3.05(b) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) to or
upon the order of, and registered (if applicable) in such names as may be
directed by, the Book-Entry Depositary or its authorized representative. Upon
the request of the Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the Issuer shall promptly make
available to the Trustee a reasonable supply of Securities that are not in the
form of Global Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Book-Entry Depositary or the Depositary or any of
their authorized representatives which is given or made pursuant to this Article
III if such order, direction or request is given or made in accordance with the
Depositary Agreement with respect to the Book-Entry Depositary and the
Applicable Procedures with respect to the Depositary.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Issuer 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 Issuer 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 written notice to
the Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuer 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 Issuer in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer 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 Issuer, 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 3.07. 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 bearer thereof on the Interest
Payment Date in the case of a Global Security in bearer form and, in the case of
a Definitive Security, 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 Special 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 bearer thereof on such Interest Payment Date with respect
to a Global Security in bearer form and, with respect to a Definitive Security,
to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and, in each case, such Defaulted Interest may be paid by the Issuer, at
its election in each case, as provided in Clause (a) or (b) below:
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(a) The Issuer may elect to make payment of any Defaulted Interest to
the bearer of such Security on any Special Payment Date (as defined below)
with respect to any Global Security in bearer form and, with respect to a
Definitive Security, to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer 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
Issuer 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 Issuer of such Special Record Date and, in the name and at the expense
of the Issuer, 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, 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, with respect to any Definitive Security,
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 (b). As used in this Clause (a), "Special Payment Date"
means the date on which Defaulted Interest is paid to the Holder.
(b) The Issuer 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 Issuer to the
Trustee of the
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proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Issuer, the Guarantor, the Trustee and any
agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose
name a Definitive Security is registered as the owner of such Security and may
treat the bearer of a Global Security as the owner of such Security, in each
case, for the purpose of receiving payment of principal of and premium, if any,
and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the Guarantor or
the Trustee shall be affected by notice to the contrary.
SECTION 3.09. Cancelation. All Securities surrendered for payment,
redemption, registration of transfer, exchange or pursuant to any Offer to
Purchase pursuant to Section 10.13 or 10.17 shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Issuer may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance with its
standard procedures or as directed by an Issuer Order; provided, however, that
the Trustee shall not be required to destroy such Securities.
SECTION 3.10. Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months, provided,
however, that Special Interest on Original Securities shall be computed on the
basis of a 365- or 366-day year, as the case may be, and the number of days
actually elapsed.
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SECTION 3.11. CUSIP and ISIN Numbers. The Issuer 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.
SECTION 3.12. Additional Securities. The Issuer may issue Additional
Securities under this Indenture in accordance with Section 3.01(b) and the terms
of this Indenture; provided, however, that (i) no Additional Securities may be
issued at a price that would cause such Security to have "original issue
discount" within the meaning of Section 1273 of the Internal Revenue Code of
1986, as amended and (ii) the Issuer and Guarantor are not in default under this
Indenture both before and after giving effect to the proposed issuance of
Additional Securities.
ARTICLE IV
Guarantee Of Securities
SECTION 4.01. Guarantee. Subject to the provisions of this Article Four,
the Guarantor hereby fully, unconditionally and irrevocably guarantees to each
Holder and to the Trustee on behalf of the Holders: (i) the due and punctual
payment of the principal of, premium, if any, on and interest (including Special
Interest) on each Security, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Securities,
to the extent lawful, and the due and punctual performance of all other
obligations of the Issuer to the Holders or the Trustee, all in accordance with
the terms of such Security and this Indenture and (ii) in the case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, at Stated Maturity, by
acceleration or otherwise. The Guarantor hereby waives diligence,
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presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, the benefit of discussion, protest or notice with respect to
any such Security or the debt evidenced thereby and all demands whatsoever, and
covenants that this Securities Guarantee will not be discharged as to any such
Security except by payment in full of the principal thereof and interest thereon
and as provided in Section 12.01 and Section 12.02 (subject to Section 12.06).
The maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five for the purposes of this Article Four. In the event of any
declaration of acceleration of such obligations as provided in Article Five,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purpose of this Article Four. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Five, the Trustee shall promptly make a demand for
payment on the Securities under the Guarantee provided for in this Article Four.
If the Trustee or the Holder of any Security is required by any court or
otherwise to return to the Issuer or the Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to the Issuer or the Guarantor, any amount paid to the Trustee or such Holder in
respect of a Security, this Securities Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Five hereof for the purposes of this Securities Guarantee,
notwithstanding any stay, injunction or other prohibition extant under any
applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
Until such time as the Securities are fully and finally paid, including all
interest, premium, principal and liquidated damages with respect thereto, the
Guarantor hereby irrevocably waives any claim or other rights which it may now
or hereafter acquire against the Issuer that arise from the existence, payment,
performance or enforcement of its obligations under this Securities Guarantee
and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or
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remedy of the Holders against the Issuer or any collateral which any such Holder
or the Trustee on behalf of such Holder hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by setoff or in any
other manner, payment or security on account of such claim or other rights. If
any amount shall be paid to the Guarantor in violation of the preceding sentence
and the principal of, premium, if any, and accrued interest on the Securities
shall not have been paid in full, such amount shall be deemed to have been paid
to the Guarantor for the benefit of, and held in trust for the benefit of, the
Holders, and shall forthwith be paid to the Trustee for the benefit of the
Holders to be credited and applied upon the principal of, premium, if any, and
accrued interest on the Securities. The Guarantor acknowledges that it will
receive direct and indirect benefits from the issuance of the Securities
pursuant to this Indenture and that the waivers set forth in this Section 4.01
are knowingly made in contemplation of such benefits.
The Guarantee set forth in this Section 4.01 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by or on behalf of the
Trustee.
SECTION 4.02. Obligations Unconditional. Subject to Section 4.05, nothing
contained in this Article Four or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Guarantor and the
holders of the Securities, the obligation of the Guarantor, which is absolute
and unconditional, upon failure by the Issuer, to pay to the holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holders of the
Securities and creditors of the Guarantor, nor shall anything herein or therein
prevent the holder of any Securities or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture.
Without limiting the foregoing, nothing contained in this Article Four will
restrict the right of the Trustee or the holders of the Securities to take any
action to declare the Guarantee to be due and payable prior to the
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Stated Maturity of the Securities pursuant to Section 5.02 or to pursue any
rights or remedies hereunder.
SECTION 4.03. Notice to Trustee. The Guarantor shall give prompt written
notice to the Trustee of any fact known to the Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Securities
Guarantee pursuant to the provisions of this Article Four.
ARTICLE V
Remedies
SECTION 5.01. 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):
(a) 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
(b) default in the payment of the principal of (or premium, if any,
on) any Security when due; or
(c) default in the payment of principal and interest upon any Security
required to be purchased pursuant to an Offer to Purchase pursuant to
Sections 10.13 or 10.17; or
(d) default in the performance, or breach, of Section 8.01, 10.13 or
10.17; or
(e) default in the performance, or breach, of any covenant or warranty
of the Issuer or Guarantor 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 Issuer by the Trustee or to the Issuer
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
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breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(f) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of indebtedness by the Guarantor, the Issuer or any
Subsidiary of the Guarantor or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any indebtedness of such type by the Guarantor, the
Issuer or any Subsidiary of the Guarantor with a principal amount then
outstanding, individually or in the aggregate, in excess of $10 million,
whether such indebtedness now exists or shall hereafter be created, which
default or defaults shall constitute a failure to pay in excess of $10
million of the principal of such indebtedness when due at the final
maturity thereof, or shall have resulted in excess of $10 million of
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; or
(g) a final judgment or final judgments for the payment of money are
entered against the Guarantor, the Issuer or any Subsidiary of the
Guarantor in an aggregate amount in excess of $10 million (net of
indemnities and funds actually received or to be received within 90 days of
such judgment) by a court or courts of competent jurisdiction, which
judgments remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to
appeal all such judgments has expired; or
(h) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Guarantor, the Issuer or any
Significant Subsidiaries in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Guarantor, the Issuer or any
Significant Subsidiaries a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Guarantor, the Issuer or any
Significant Subsidiaries under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Guarantor, the Issuer or any Significant
Subsidiaries or of any substantial part of its property, or ordering
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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
(i) the commencement by the Guarantor, the Issuer or any Significant
Subsidiaries of a voluntary case or proceeding under any applicable
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 Guarantor, the Issuer or any Significant Subsidiaries in an involuntary
case or proceeding under any applicable 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 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 Guarantor, the Issuer or any Significant Subsidiaries 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 Guarantor, the Issuer or any Significant
Subsidiaries in furtherance of any such action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.01(h) or
(i)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
may declare the principal amount of all the Securities to be due and payable
immediately, by a notice in writing to the Issuer (and to the Trustee if given
by Holders), and upon any such declaration such principal amount and any accrued
interest shall become immediately due and payable. If an Event of Default
specified in Section 5.01(h) or (i) occurs, the principal amount of and any
accrued interest on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
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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 principal amount of the Outstanding Securities, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Issuer 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
Issuer) 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 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 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer 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 Issuer, at the Purchase Date thereof,
the Issuer 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 of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Issuer 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 Issuer 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 Issuer 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 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Issuer (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 6.07.
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 5.05. 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 5.06. 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
6.07; 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.
SECTION 5.07. 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 not less than 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, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders To Receive Principal, Premium
and Interest. Notwithstanding
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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 3.07) 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 Issuer 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 5.09. 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 Issuer,
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 5.10. 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 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. 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.
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SECTION 5.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture 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.
SECTION 5.13. 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
Issuer), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected or
(3) arising from failure to purchase any Security tendered pursuant to
Sections 10.13 and 10.17 of this Indenture.
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 5.14. 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
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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 Issuer or the Guarantor;
further provided, that the provisions of this Section 5.14 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders holding more than 10% in aggregate principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or premium, if any, or interest
on any Security on or after the respective due dates expressed in such Security.
SECTION 5.15. Waiver of Stay or Extension Laws.
Each of the Issuer and the Guarantor 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 each of the
Issuer and the Guarantor (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.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants,
duties or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
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furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or
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affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders notice
of any default hereunder known to the Trustee as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 5.01(e), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may conclusively rely and shall be completely
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 Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(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, request from the Issuer and be completely protected in
relying upon an Officers' Certificate received in response to such request;
(d) the Trustee may consult with counsel of its selection 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;
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(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 may (but shall have no obligation to) 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 Issuer or the Guarantor, 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;
(h) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in accordance with the direction of
Holders of Outstanding Securities as provided in Sections 5.02, 5.12 and
5.13 hereof; and
(i) for all purposes under this Indenture, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 6.04. 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
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Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Securities Guarantee. The Trustee shall
not be accountable for the use or application by the Issuer of Securities or the
proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Issuer, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Issuer or the Guarantor with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 6.06. 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 Issuer.
SECTION 6.07. Compensation and Reimbursement. The Issuer and the Guarantor
jointly and severally agree
(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
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense 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 Issuer or the Guarantor (including, without limitation, this
Section 6.07) and of defending itself against any claim
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(whether asserted by any Holder or the Issuer or the Guarantor) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The provisions of this Section 6.07 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 Issuer under this
Section 6.07, 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 6.07 shall not be subordinate to any other liability or indebtedness of
the Issuer (even though the Securities may be so subordinated).
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(h) or Section 5.01(i), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or termination of the Trustee.
SECTION 6.08. 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 6.09. 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, the City of New York, New York. 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
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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 6.10. 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 6.11, 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 Issuer. 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 Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Issuer 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 6.09 and
shall fail to resign after written request therefor by the Issuer 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 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 Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at
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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 Issuer,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Issuer 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 Issuer. If no successor
Trustee shall have been so appointed by the Issuer 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 Issuer 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 1.06. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer
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 Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of all sums owing to the Trustee under
Section 6.07, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments for more fully and
certainly vesting in and
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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 6.12. 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, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided that such corporation shall be otherwise qualified and eligible
under this Article. 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 6.13. Preferential Collection of Claims Against Issuer or
Guarantor. If and when the Trustee shall be or become a creditor of the Issuer
or Guarantor (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 Issuer or Guarantor (or any such other obligor).
SECTION 6.14. 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 3.06, and Securities so authenticated
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
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Agent. Each Authenticating Agent shall be acceptable to the Issuer 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, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent; provided,
such corporation shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer. 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 Issuer. 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 Issuer and shall give notice of such
appointment in the manner provided in Section 1.06 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.
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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 6.07.
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.
Dated:
THE CHASE MANHATTAN BANK, as
Trustee,
by
________________________________,
as Authenticating Agent
by
________________________________
Authorized Signatory
SECTION 6.15. Withholding Taxes. Notwithstanding any other provision of
this Agreement, the Trustee, as agent for the Issuer and the Guarantor, shall
exclude and withhold from each payment of principal and interest and other
amounts due hereunder or under the Securities or the Securities Guarantee any
and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Securities or the Securities
Guarantee, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Holders of the Securities, that it
will furnish to the Holders of the Securities such forms or certificates as are
necessary or appropriate to provide the information described in Section
10.09(c)(i) hereof or make the declaration or claim described in Section
10.09(c)(ii) hereof, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as
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possible after the payment thereof, it will deliver to each Holder of a Security
appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from time
to time.
In the event that the Trustee is also acting as Paying Agent,
Authenticating Agent, transfer agent, or Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Six shall also be
afforded to such Paying Agent, Authenticating Agent, transfer agent, or
Registrar.
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuer
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of Holder. The
Issuer 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 the Issuer 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 7.02. 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 7.01 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 7.01 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.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any
agent of either 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 7.03. Reports by Trustee. (a) Within 30 days after January 1 of
each year, commencing with the first January 1 following the first issuance of
Securities pursuant to Section 3.01, if required by Section 3.13(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 3.13(c) of the
Trust Indenture Act, a brief report dated as of such January 1 with respect to
any of the events specified in said Section 3.13(a) which may have occurred
since the later of the immediately preceding January 1 and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by Section 3.13(b) of
the Trust Indenture Act and Section 6.02 hereof at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner and
to the persons required by Sections 3.13(c) and 3.13(d) of the Trust Indenture
Act.
(d) 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 Issuer. The Issuer will
promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Issuer and Guarantor. Each of the Guarantor and
the Issuer 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 10.18.
SECTION 7.05. Officers' Certificate with Respect to Change in Interest
Rates. Within five days after any Step-Up or Step-Down Date, the Issuer shall
deliver an Officers' Certificate to the Trustee stating the new interest rate
and the date on which it became effective.
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ARTICLE VIII
Merger, Consolidation, Etc.
SECTION 8.01. Mergers, Consolidations and Certain Sales of Assets. Neither
the Guarantor nor the Issuer may, 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 Guarantor or the Issuer, or
(ii) directly or indirectly, transfer, sell, lease or otherwise dispose of all
or substantially all of its assets to any other Person, unless:
(1) in a transaction in which the Guarantor or the Issuer, as
applicable, does not survive or in which the Guarantor or the Issuer sells,
leases or otherwise disposes of all or substantially all of its assets to
any other Person (other than, in any such case, the Guarantor or the
Issuer), the successor entity to the Guarantor or the Issuer is organized
under the laws of the United States of America or any State thereof or the
District of Columbia, the British Virgin Islands, Cayman Islands, The
Netherlands, Ireland or Jersey and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Guarantor's or the Issuer's
obligations under the Indentures;
(2) immediately before and after giving effect to such transaction and
treating any Debt which becomes an obligation of the Guarantor or a
Subsidiary as a result of such transaction as having been Incurred by the
Guarantor or such Subsidiary at the time of the transaction, no Event of
Default or event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default shall have occurred and be
continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Guarantor (or other successor entity to the
Guarantor) is equal to or greater than that of the Guarantor immediately
prior to the transaction;
(4) if, as a result of any such transaction, property or assets of the
Guarantor or any Subsidiary would become subject to a Lien prohibited by
Section 10.15, the Guarantor or the successor entity to the Guarantor shall
have secured the Securities as required by said covenant; and
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(5) in the event that the continuing Person is incorporated in a
jurisdiction other than the United States or the jurisdiction in which such
Person was incorporated immediately prior to such transaction, (A) the
Issuer delivers to the Trustee an Opinion of Counsel stating that the
obligations of the continuing Person under the Indenture are enforceable
under the laws of the new jurisdiction of its incorporation to the same
extent as the obligations of the Issuer or the Guarantor, as the case may
be, under the Indenture immediately prior to such transaction; (B) the
continuing Person agrees in writing to submit to jurisdiction and appoints
an agent for the service of process, each under terms substantially similar
to the terms contained in the Indenture with respect to the Issuer or the
Guarantor, as the case may be; (C) the continuing Person agrees in writing
to pay Additional Amounts as provided under this Indenture under Section
10.09 with respect to the Issuer or the Guarantor, as the case may be,
except that such Additional Amount shall relate to any withholding tax
whatsoever regardless of any change of law (subject to exceptions
substantially similar to those contained in Section 10.09); (D) the Board
of Directors of the Guarantor determines in good faith that such
transaction will have no material adverse effect on any Holder and a Board
Resolution to that effect is delivered to the Trustee; and (E) the
principal purpose of the continuing Person being incorporated in such
jurisdiction is to obtain tax benefits for the Guarantor, the Issuer, their
direct and indirect stockholders or the Holders.
SECTION 8.02. Successor Substituted. Upon any consolidation of the Issuer
with, or merger of the Issuer with or into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Issuer substantially as an
entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Issuer 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 Issuer under this Indenture with the same
effect as if such successor Person had been named as the Issuer 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.
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ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Issuer and the Guarantor, each when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer or the
Guarantor and the assumption by any such successor of the covenants of the
Issuer or the Guarantor herein and in the Securities; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Issuer or the Guarantor; or
(3) to secure the Securities pursuant to the requirements of Section
10.15 or otherwise; or
(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 Registered Securities or thereafter to maintain the qualification of
this Indenture under the Trust Indenture Act; or
(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 interests of the Holders in any material respect;
or
(6) to provide for uncertificated Securities in addition to or in
place of certified Securities; or
(7) to provide for the issuance of Additional Securities in accordance
with Section 3.12.
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SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
written 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 Issuer and the Trustee, and consistent with Section 5.13, the Issuer and
the Guarantor, each when authorized by a 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 written 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 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
(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 5.13 or
Section 10.20, 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 making of an Offer with respect to an Offer to
Purchase pursuant to Sections 10.13 or 10.17, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner materially
adverse to such Holder, or
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(5) release the Guarantor from its Securities Guarantee.
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 9.03. 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
6.01) 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 9.04. 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.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 9.06. 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 Issuer shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
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ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest. The Issuer 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 10.02. Maintenance of Office or Agency. The Issuer 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 Issuer in respect of the Securities and this
Indenture may be served. The Issuer 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 Issuer 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 Issuer hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Issuer 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 Issuer 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 Issuer 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 10.03. Money for Security Payments To Be Held in Trust. If the
Issuer 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 5.04, upon any
bankruptcy or
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reorganization proceeding relative to the Issuer, the Trustee shall serve as the
Paying Agent for the Securities.
Whenever the Issuer 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 Issuer will promptly notify
the Trustee in writing of its action or failure so to act. Upon any bankruptcy
or reorganization proceeding relative to the Issuer, the Trustee shall serve as
the Paying Agent for the Securities.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Issuer (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 Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such
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sums were held by the Issuer 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 Issuer, 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 Issuer on Issuer Request, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer 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 Issuer 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 publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
SECTION 10.04. Existence. Subject to Article Eight, the Guarantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and franchises of the
Guarantor, the Issuer and each of the Restricted Subsidiaries; provided,
however, that the Guarantor shall not be required to preserve any such right or
franchise if the Guarantor shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Guarantor, the Issuer or
the Restricted Subsidiaries and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 10.05. Maintenance of Properties. The Guarantor will cause all
properties used or useful in the conduct of its business or the business of the
Issuer or any Restricted 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
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Guarantor 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 Guarantor from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the reasonable judgment of the Guarantor, desirable in the
conduct of its business or the business of the Issuer or any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims. The Guarantor will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Guarantor or the Issuer or any Restricted Subsidiaries or
upon the income, profits or property of the Guarantor or the Issuer or any
Restricted 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
Guarantor or the Issuer or any Restricted Subsidiaries; provided, however, that
the Guarantor 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 10.07. Maintenance of Insurance. The Guarantor shall, and shall
cause the Issuer and the Restricted Subsidiaries 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 Guarantor 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.
SECTION 10.08. Limitation on Consolidated Debt. The Guarantor may not, and
may not permit any Restricted Subsidiary of the Guarantor to, Incur any Debt
(other than the Senior Discount Securities and the related guarantee by the
Guarantor, and the Securities issued on the date hereof and the Securities
Guarantee) unless the ratio of (i) the aggregate consolidated principal amount
of Debt (which is defined to include the accreted value of any Debt issued at a
discount) of the Guarantor 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) four (4) times the Consolidated
Cash Flow Available for
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Fixed Charges for the most recent fiscal quarter next preceding the Incurrence
of such Debt for which consolidated financial statements are available,
determined on a pro forma basis as if any such Debt had been Incurred and the
proceeds thereof had been applied at the beginning of such recent fiscal
quarter, would be less than 7.0 to 1.0 for such period.
Notwithstanding the foregoing limitation, the Guarantor and any Restricted
Subsidiary may Incur the following:
(i) Debt under Credit Facilities in an aggregate principal amount at
any one time not to exceed $200 million, and any renewal, extension,
refinancing or refunding thereof in an amount which, together with any
principal amount remaining outstanding under all Credit Facilities, does
not exceed the aggregate principal amount outstanding under all Credit
Facilities immediately prior to such renewal, extension, refinancing or
refunding;
(ii) Debt owed by the Guarantor to any Restricted Subsidiary of the
Guarantor or Debt owed by a Restricted Subsidiary of the Guarantor to the
Guarantor or a Restricted Subsidiary of the Guarantor; provided, however,
that upon either (x) the transfer or other disposition by such Restricted
Subsidiary or the Guarantor of any Debt so permitted to a Person other than
the Guarantor or another Restricted Subsidiary of the Guarantor or (y) such
Restricted Subsidiary ceasing to be a Restricted Subsidiary, the provisions
of this clause (ii) 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;
(iii) Debt Incurred to renew, extend, refinance or refund (each, a
"refinancing") (x) Debt outstanding at the date hereof (after giving effect
to the Equity Clawback) or (y) Incurred pursuant to the first paragraph of
this Section, or clause (vi) or (vii) of this paragraph or (z) the
Securities or the Senior Discount Securities, in each case, 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 Guarantor as necessary to accomplish such refinancing by
means of a
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tender offer or privately negotiated repurchase, plus the expenses of the
Guarantor or the Restricted Subsidiary effecting such refinancing 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 and the Security Guarantee or Debt which is
subordinate in right of payment to the Securities and the Security
Guarantee shall only be permitted if (A) in the case of any refinancing of
the Securities or Debt which is pari passu to the Securities and the
Security Guarantee, the refinancing Debt is made pari passu or subordinated
to the Securities and the Security Guarantee, and, in the case of any
refinancing of Subordinated Debt, the refinancing Debt constitutes
Subordinated Debt and (B) in any case, the refinancing Debt by its terms,
or by the terms of any agreement or instrument pursuant to which such Debt
is issued, does not have a final stated maturity prior to the final stated
maturity of the Debt being refinanced, and the Average Life of such new
Debt is at least equal to the remaining Average Life of the Debt being
refinanced (assuming that such Debt being refinanced had a final stated
maturity three months later than its actual final stated maturity);
(iv) Debt in an aggregate principal amount not in excess of (A) two
(2) times the aggregate amount of the Guarantor's Incremental Paid-in
Capital minus (B) $165 million;
(v) Debt in an aggregate principal amount not in excess of 80% of the
aggregate amount of accounts receivable set forth on the most recent
unaudited quarterly or audited annual financial statements of the Guarantor
and its consolidated subsidiaries filed with the Commission;
(vi) Purchase Money Debt, which is incurred for the construction,
acquisition and improvement of Telecommunications Assets, provided that the
amount of such Purchase Money Debt does not exceed the cost of the
construction, acquisition or improvement of the applicable
Telecommunications Assets;
(vii) Debt consisting of Permitted Interest Rate and Currency
Protection Agreements; and
(viii) Debt not otherwise permitted to be Incurred pursuant to clauses
(i) through (vii) above, which,
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together with any other outstanding Debt Incurred pursuant to this clause
(viii), has an aggregate principal amount not in excess of $50 million at
any time outstanding.
For purposes of determining compliance with this Section, with respect to
any item of Debt, (x) in the event that such item of Debt meets the criteria of
more than one of the types of Debt the Guarantor or a Restricted Subsidiary is
permitted to Incur pursuant to the foregoing clauses (i) through (viii), the
Guarantor 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 permitting the Debt as so classified and (y) any other
obligation of the obligor on such Debt (or of any other Person who could have
Incurred such Debt under this Section) arising under any Guarantee, Lien or
letter of credit supporting such Debt shall be disregarded to the extent that
such Guarantee, Lien or letter of credit secures the principal amount of such
Debt.
For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Debt denominated in a foreign currency, the
Dollar-equivalent principal amount of such foreign-currency-denominated Debt
Incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such foreign-currency-denominated Debt
was Incurred, in the case of term debt, or first committed, in the case of
revolving credit debt; provided that (x) the Dollar-equivalent principal amount
of any such Debt outstanding on the date hereof shall be calculated based on the
relevant currency exchange rate in effect on the date hereof and (y) if such
Debt is Incurred to refinance other Debt denominated in a foreign currency, and
such refinancing would cause the applicable Dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such Dollar denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing
Debt does not exceed the principal amount of such Debt being refinanced. The
principal amount of any Debt Incurred to refinance other Debt, if Incurred in a
different currency from the Debt being refinanced, shall be calculated based on
the currency exchange rate applicable to the currency in which such respective
Debt is denominated that is in effect on the date of such refinancing.
SECTION 10.09. Additional Amounts. Payments made by the Issuer or the
Guarantor pursuant to the Securities or
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the Securities Guarantee will be made without withholding or deduction for taxes
unless required by law. In the event of (i) any change that becomes effective
after the date hereof in the laws of the U.K. or Bermuda or of any political
subdivision or taxing authority thereof or therein or any change in the
interpretation or administration thereof or (ii) a failure by the Issuer to list
and maintain a listing of the Securities on a "recognized stock exchange"
(within the meaning of Section 841 of the U.K. Income and Corporation Taxes Act
1988) prior to the first date upon which interest is required to be paid
hereunder (a "Listing Failure"), the effect of which is to require the
withholding or deduction by the Issuer or the Guarantor pursuant to the
Securities or the Securities Guarantee, respectively, of any amount for taxes
that would not have been required to be withheld or deducted absent such change
or Listing Failure, as the case may be, the Issuer or the Guarantor will pay, to
the extent it may then lawfully do so, such additional amounts ("Additional
Amounts") as may be necessary in order that every net payment of the principal
of and interest on the Securities, after deduction for withholding for or on
account of any future tax, assessment or other governmental charge will not be
less than the amount provided for in the Securities to be then due and payable;
provided, however, that the foregoing obligation to pay Additional Amounts shall
not apply in respect of:
(a) any tax, withholding, assessment or other governmental charge
which would not have been imposed but for (i) the existence of any present
or former connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
holder, if such holder is an estate, trust, partnership or corporation) and
the U.K. or Bermuda or any political subdivision or taxing authority
thereof including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident thereof or being or having been present or
engaged in trade or business therein or having or having had a permanent
establishment therein or (ii) the presentation of a Security or a
Securities Guarantee (where presentation is required) for payment on a date
more than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for,
whichever occurs later, except for Additional Amounts with respect to Taxes
that would have been imposed had the holder presented the Security for
payment within such 30-day period;
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(b) any estate, inheritance, gift, sale, transfer or personal property
tax;
(c) any tax, assessment or other governmental charge that is withheld
by reason of the failure to timely comply by the holder or the beneficial
owner of the Security with a request in writing of the Issuer or the
Guarantor (which request shall be furnished to the Trustee) (i) to provide
information concerning the nationality, residence or identity of the holder
or such beneficial owner or (ii) to make any declaration or other similar
claim or satisfy any information or reporting requirement, which, in the
case of (i) or (ii), is required or imposed by a statute, treaty,
regulation or administrative practice of the taxing or domicile
jurisdiction as a precondition to exemption from or reduction of all or
part of such tax, assessment or other governmental charge; provided,
however, that this clause (c) shall not apply to limit the Issuer's or
Guarantor's obligation to pay Additional Amounts if the completing and
filing of the information described in subclause (i) or the declaration or
other claim described in subclause (ii) would be materially more onerous in
form, in procedure or in substance of information disclosed, in comparison
to the information reporting requirements imposed under U.S. tax law with
respect to Forms 1001, W-8 and W-9; or
(d) any tax, withholding, assessment or other governmental charge
resulting from a Listing Failure with respect to any Security issued in the
form of a Definitive Security pursuant to the terms of the Deposit
Agreement and this Indenture; or
(e) any combination of items (a), (b), (c) and (d) above; nor shall
Additional Amounts be paid with respect to any payment of the principal of,
or any interest on, any Security or Securities Guarantee to any holder who
is not the sole beneficial owner of such Security or Securities Guarantee
or is a fiduciary or partnership, but only to the extent that a beneficial
owner, a beneficiary or a settlor with respect to a fiduciary or a member
of the partnership would not have been entitled to the payment of the
Additional Amount had the beneficial owner, beneficiary, settlor or member
of such partnership received directly its beneficial or distributive share
of the payment.
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At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Issuer or the Guarantor
will be obligated to pay Additional Amounts with respect to such payment, the
Issuer or the Guarantor will deliver to the Trustee an Officer's Certificate
stating the fact that such Additional Amounts will be payable and the amounts so
payable and will set forth such other information necessary to enable the
Trustee to pay such Additional Amounts to Holders on the payment date. Whenever
in this Indenture there is mentioned, in any context, the payment of principal
(and premium, if any), Redemption Price, interest or any other amount payable
under or with respect to any Security, such mention shall be deemed to include
mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
SECTION 10.10. Limitation on Restricted Payments. The Guarantor (i) may
not, and will not permit any Restricted Subsidiary, directly or indirectly, to
declare or pay any dividend, or make any distribution, in respect of its Capital
Stock or to the holders thereof, excluding (x) 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), (y) any dividends paid to the Guarantor or a Restricted
Subsidiary, or (z) pro rata dividends paid on shares of Common Stock of
Restricted Subsidiaries, (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 Guarantor or any Related Person of the Guarantor (other
than a permitted refinancing) or (b) any options, warrants or rights to purchase
or acquire shares of Capital Stock of the Guarantor or any Related Person of the
Guarantor or any securities convertible or exchangeable into shares of Capital
Stock of the Guarantor or any Related Person of the Guarantor (other than a
permitted refinancing), (iii) may not make, or permit any Restricted Subsidiary
to make, any Investment, 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 Guarantor or the Issuer which is
subordinate in right of payment to the Securities or the Securities Guarantee
(each of clauses (i) through (iv) being a "Restricted Payment") if: (1) an Event
of Default, or an event that with the passing of time or the giving of notice,
or both, would constitute an Event of
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Default, shall have occurred and be continuing, or (2) except with respect to
Investments, upon giving effect to such Restricted Payment, the Guarantor could
not Incur at least $1.00 of additional Debt pursuant to the first paragraph of
Section 10.08, or (3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the date hereof exceeds the sum of:
(a)(x) Consolidated Cash Flow Available for Fixed Charges since the end of the
last full fiscal quarter prior to the date hereof through the last day of the
last full fiscal quarter ending immediately preceding the date of such
Restricted Payment (the "Calculation Period") minus (y) 1.5 times Consolidated
Interest Expense for the Calculation Period plus (b) an amount equal to the net
reduction in Investments (other than reductions in Permitted Investments) in any
Person resulting from payments of interest on Debt, dividends, repayments of
loans or advances, or other transfers of assets, in each case to the Guarantor
or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Consolidated Cash Flow Available for
Fixed Charges for the Calculation Period), or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of Investment), not to exceed, in each case, the
amount of Investments previously made by the Guarantor or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary plus (c) an amount equal to
the aggregate net proceeds received after the date hereof, including the fair
market value of property other than cash (determined in good faith by the Board
of Directors as evidenced by a resolution of the Board of Directors filed with
the Trustee), as capital contributions to the Guarantor or from the issuance
(other than to a Subsidiary) of Capital Stock (other than Disqualified Stock) of
the Guarantor and warrants, rights or options on Capital Stock (other than
Disqualified Stock) of the Guarantor and the principal amount of Debt of the
Guarantor or any Restricted Subsidiary that has been converted into Capital
Stock (other than Disqualified Stock and other than by a Subsidiary) of the
Guarantor after the date hereof plus (d) $30 million.
Notwithstanding the foregoing, (i) the Guarantor may pay any dividend on
Capital Stock of any class of the Guarantor within 60 days after the declaration
thereof if, on the date when the dividend was declared, the Guarantor could have
paid such dividend in accordance with the foregoing provisions, (ii) the
Guarantor may make acquisitions of a minority equity interest in entities
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engaged in the Telecommunications Business; provided that (A) the acquisition of
a majority equity interest in such entities is not then permitted or practicable
under applicable law without regulatory consent or change of law, (B) the Board
of Directors of the Guarantor determines in good faith that there is a
substantial probability that such approval or change of law will be obtained,
(C) the Guarantor or one of its Restricted Subsidiaries has the right to acquire
Capital Stock representing a majority of the voting power of the Voting Stock of
such entity upon receipt of regulatory consent or change of law and does acquire
such Voting Stock reasonably promptly upon receipt of such consent or change of
law and (D) in the event that such consent or change of law has not been
obtained within 18 months of funding such Investment, the Guarantor or one of
its Restricted Subsidiaries has the right to sell such minority equity interest
to the Person from whom it acquired such interest, for consideration consisting
of the consideration originally paid by the Guarantor and its Restricted
Subsidiaries for such minority equity interest; (iii) the Guarantor may
repurchase any shares of its Common Stock or options to acquire its Common Stock
from Persons who were formerly directors, officers or employees of the Guarantor
or any of its Subsidiaries, provided that the aggregate amount of all such
repurchases made pursuant to this clause (iii) shall not exceed $6 million, plus
the aggregate cash proceeds received by the Guarantor since the date hereof from
issuances of its Common Stock or options to acquire its Common Stock to
directors, officers and employees of the Guarantor or any of its Subsidiaries,
(v) the Guarantor or a Restricted Subsidiary may redeem, defease, repurchase,
retire or otherwise acquire or retire for value Debt of the Guarantor or the
Issuer which is subordinated in right of payment to the Securities or the
Security Guarantees, as the case may be, in exchange for, or out of the proceeds
of a substantially concurrent sale (other than to a Subsidiary) of, Capital
Stock (other than Disqualified Stock of the Guarantor) or in a refinancing that
satisfies the requirements of clause (iii) of the second paragraph of Section
10.08 and (vi) the Guarantor and its Subsidiaries may retire or repurchase any
Capital Stock of the Guarantor or of any Subsidiary of the Guarantor in exchange
for, or out of the proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Guarantor) of, Capital Stock (other than Disqualified Stock)
of the Guarantor or any Subsidiary.
SECTION 10.11. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Guarantor may not, and may not permit any
Restricted
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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 Guarantor (i) to pay dividends (in
cash or otherwise) or make any other distributions in respect of its Capital
Stock owned by the Guarantor or any other Restricted Subsidiary of the Guarantor
or pay any Debt or other obligation owed to the Guarantor or any other
Restricted Subsidiary; (ii) to make loans or advances to the Guarantor or any
other Restricted Subsidiary; or (iii) to transfer any of its property or assets
to the Guarantor or any other Restricted Subsidiary.
Notwithstanding the foregoing, the Guarantor 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 date hereof; (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 was not Incurred in anticipation of such Person being
acquired; (c) 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; provided, however, that the provisions contained in such renewal,
refunding or extension agreement relating to such encumbrance or restriction are
no more restrictive in any material respect than the provisions contained in the
agreement the subject thereof; (d) in the case of clause (iii) in the above
paragraph, contained in any security agreement (including a Capital Lease
Obligation) securing Debt of the Guarantor or a Restricted Subsidiary otherwise
permitted hereunder, but only to the extent such restrictions restrict the
transfer of the property subject to such security agreement; (e) in the case of
clause (iii) in the above paragraph, with respect to customary nonassignment
provisions entered into in the ordinary course of business in leases and other
agreements; (f) with respect to a Restricted Subsidiary of the Guarantor 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 (x) the consummation of such transaction would not
result in an Event of Default or an event that, with the passing of time or the
giving of notice or both, would constitute an Event of Default, (y) such
restriction terminates if such transaction is not consummated and (z) the
consummation or abandonment of such transaction occurs within one year of the
date such agreement was entered into; (g) pursuant to applicable law or required
by any regulatory authority
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having jurisdiction over the Guarantor or any Subsidiary; (h) pursuant to this
Indenture and the Securities or the Senior Discount Securities Indenture and the
Senior Discount Securities; (i) constituting a Lien otherwise permitted pursuant
to Section 10.15; and (j) other encumbrances or restrictions that are not
materially more restrictive than customary provisions in comparable financings
provided that each of the Issuer and the Guarantor provides an Officer's
Certificate to the Trustee to the effect that in the opinion of the signers of
such certificate such encumbrances or restrictions will not materially impact
the Issuers' and the Guarantors' ability to make scheduled payments of interest
and principal under the Securities.
SECTION 10.12. Limitation on Transactions with Affiliates and Related
Persons. The Guarantor will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any Related Person or
with any Affiliate of the Guarantor or any Restricted Subsidiary, except upon
fair and reasonable terms no less favorable to the Guarantor or such Restricted
Subsidiary than could be obtained, at the time of such transaction or, if such
transaction is pursuant to a written agreement, at the time of the execution of
the agreement providing therefor, in a comparable arm's-length transaction with
a Person that is not a Related Person or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Guarantor or a Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm (or a subsidiary or affiliate thereof) in the United States stating
that the transaction is fair to the Guarantor or such Restricted Subsidiary from
a financial point of view; (ii) any transaction solely between the Guarantor and
any of its Wholly Owned Restricted Subsidiaries or solely between Wholly Owned
Restricted Subsidiaries; and (iii) any payments or other transactions pursuant
to any tax-sharing agreement between the Guarantor and any other Person with
which the Guarantor files a consolidated tax return or with which the Guarantor
is part of a consolidated group for tax purposes. Notwithstanding the foregoing,
any transaction covered by the first paragraph of this Section and not covered
by clauses (ii) through (iii) of this paragraph must be approved or determined
to be fair in the manner provided for
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in clause (i)(A) or (B) above unless the aggregate amount of such transaction is
less than $5 million in value.
SECTION 10.13. Limitation on Asset Dispositions. (a) The Guarantor may not,
and may not permit any Restricted Subsidiary of the Guarantor to, make any Asset
Disposition in one or more related transactions unless: (i) the Guarantor 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, in the
case of an Asset Disposition in an amount greater than $5 million, evidenced by
a resolution of the Board of Directors filed with the Trustee; and (ii) at least
75% of the consideration for such disposition consists of (1) cash or readily
marketable cash equivalents or the assumption of Debt of the Guarantor (other
than Debt that is subordinated to the Securities) or of a Restricted Subsidiary
and release from all liability on the Debt assumed, or (2) Telecommunications
Assets. In the event and to the extent that the Net Available Proceeds received
by the Guarantor or any of its Restricted Subsidiaries from one or more Asset
Dispositions occurring on or after the date hereof in any period of 12
consecutive months exceed 10% of Consolidated Tangible Assets (determined as of
the date closest to the commencement of such 12-month period for which a
consolidated balance sheet of the Guarantor and its subsidiaries have been filed
with the Commission), then the Guarantor or the Issuer shall or shall cause the
relevant Restricted Subsidiary to (i) within 12 months after the date Net
Available Proceeds so received exceed 10% of Consolidated Tangible Assets (A)
apply an amount equal to such excess Net Available Proceeds to permanently repay
unsubordinated Debt of the Guarantor or any Restricted Subsidiary providing a
Subsidiary Guarantee pursuant to Section 10.14 or Debt of any other Restricted
Subsidiary, in each case owing to a Person other than the Guarantor or any of
its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so
applied pursuant to clause (A) (or enter into a definitive agreement committing
to so invest within 12 months after the date of such agreement), in
Telecommunications Assets and (ii) apply (no later than the end of the 12-month
period referred to in clause (i)) such excess Net Available Proceeds (to the
extent not applied pursuant to clause (i)) as provided in the paragraph (b)
below. The amount of such excess Net Available Proceeds required to be applied
(or to be committed to be applied) during such 12-month period as set forth in
clause (i) of the preceding sentence and not
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applied as so required by the end of such period shall constitute "Excess
Proceeds".
(b) If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section totals at least $10 million, the Issuer shall repay any Debt of the
Guarantor or any Restricted Subsidiary to the extent the terms of such Debt
require repayment prior to an Offer to Purchase being made hereunder (including
by way of an offer to purchase to the holders of such Debt, if so required). To
the extent there are Excess Proceeds after such repayment (or offer to
purchase), the Issuer must commence, not later than the fifteenth Business Day
of such month (or if later, the fifteenth Business Day after the expiration of
any such required offer to purchase), and consummate an Offer to Purchase from
the holders of the Securities on a pro rata basis an aggregate principal amount
of Securities on the relevant Payment Date equal to the Excess Proceeds on such
date not applied or to be applied pursuant to the first sentence of this
paragraph (b), at a purchase price equal to 100% of the principal amount of the
Securities, plus, in each case, accrued interest (if any) to but excluding the
Payment Date and, to the extent required by the terms thereof, any other Debt of
the Guarantor that is pari passu with the Securities (including the Senior
Discount Securities) at a price no greater than 100% of the principal amount
thereof plus accrued interest to but excluding the date of purchase (or 100% of
the accreted value in the case of the Senior Discount Securities and other
original issue discount Debt). To the extent there are any remaining Excess
Proceeds following the completion of the Offer to Purchase, the Issuer must
repay such other Debt of the Guarantor or Debt of a Restricted Subsidiary of the
Guarantor, to the extent permitted under the terms thereof and, to the extent
there are any remaining Excess Proceeds after such repayment, the Issuer shall
apply such amount to any other use as determined by the Issuer which is not
otherwise prohibited by this Indenture.
SECTION 10.14. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries. The Guarantor may not, and may not permit any
Restricted Subsidiary of the Guarantor to, issue, transfer, convey, sell or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary of
the Guarantor 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 Guarantor to any Person other than the Guarantor or
a Wholly Owned Restricted Subsidiary of the
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Guarantor except (i) a sale of all of the Capital Stock of such Restricted
Subsidiary owned by the Guarantor and any Restricted Subsidiary of the Guarantor
that complies with Section 10.13 above to the extent such Section applies, (ii)
if required, the issuance, transfer, conveyance, sale or other disposition of
directors' qualifying shares, (iii) 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 and (iv) issuances of not
more than 49% of the voting stock and equity interest in a Restricted Subsidiary
engaged in the Telecommunications Business (1) in connection with the
acquisition of such Restricted Subsidiary or Telecommunications Assets acquired
by such Restricted Subsidiary or (2) to a Strategic Investor; provided, that the
Guarantor complies with Section 10.13 above to the extent such Section applies.
SECTION 10.15. Limitation on Liens. The Guarantor may not, and may not
permit any Restricted Subsidiary of the Guarantor 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 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 Guarantor 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: (i) Liens existing on the
date hereof and securing Debt outstanding on the date hereof; (ii) Liens
securing Debt outstanding or available under all Credit Facilities to the extent
such Debt is permitted under clause (i) of the second paragraph of Section
10.08; (iii) Liens in favor of the Guarantor or any Restricted Subsidiary of the
Guarantor; (iv) Liens on real or personal property of the Guarantor or a
Restricted Subsidiary of the Guarantor acquired, constructed or constituting
improvements made after the date of original issuance of the Securities to
secure Purchase Money Debt which is Incurred for the construction,
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acquisition and improvement of Telecommunications Assets and is otherwise
permitted under this Indenture; provided, however, that (a) the principal amount
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 Liens,
(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 specific item of property (or portion thereof) acquired,
constructed or constituting the improvements made with the proceeds of such
Purchase Money Debt; (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 the principal amount of Debt so secured is
not increased except as otherwise permitted under clause (iii) of the second
paragraph of Section 10.08 and, in the case of Liens to secure Debt incurred to
extend, renew, refinance or refund Debt secured by a Lien referred to in the
foregoing clause (i), (iv) or (v), such Liens do not extend to any other
property; and (vii) Permitted Liens.
SECTION 10.16. Limitation on Issuance of Guarantees of Debt by Restricted
Subsidiaries. The Guarantor will not permit any Restricted Subsidiary, directly
or indirectly, to incur any Guarantee of any Debt of the Guarantor or the Issuer
unless such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a Guarantee by such Subsidiary of the
Securities; any Subsidiary Guarantee by such Subsidiary of the Securities (x)
will be senior in right of payment to any Guarantee of Subordinated Debt of the
Guarantor or the Issuer and (y) will be pari passu with or senior to any
Guarantee of any other Debt of the Guarantor or the Issuer.
Notwithstanding the foregoing, any Subsidiary Guarantee may provide by its
terms that it shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the
Guarantor, of all of the Guarantor's and each Restricted Subsidiary's Capital
Stock in, or all or substantially all the assets of, such Restricted Subsidiary
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(which sale, exchange or transfer is not prohibited by this Indenture) or (ii)
the release or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guarantee, except a discharge or release by or as a result of payment
under such Guarantee.
SECTION 10.17. Change of Control. (a) Unless the Issuer has heretofore
exercised its right to redeem all of the Securities in accordance with the terms
of this Indenture and the Securities, upon the occurrence of a Change of Control
(as defined below), each Holder of a Security shall have the right to have such
Security repurchased by the Issuer on the terms and conditions precedent set
forth in this Section 10.17 and otherwise in this Indenture. The Issuer shall,
within 30 days following the date of the consummation of a transaction resulting
in a Change of Control, mail an Offer with respect to an Offer to Purchase all
Outstanding Securities at a purchase price equal to 101% of their principal
amount plus accrued interest to but excluding the date of purchase. Installments
of interest (including Special Interest) whose Stated Maturity is on or prior to
the Purchase 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
3.07. 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.
(b) The Issuer and Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. Prior to the Purchase Date,
the Issuer shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the Issuer is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) 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 Issuer.
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
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by the Holder. Any Security not accepted for payment shall be promptly mailed or
delivered by the Issuer to the Holder thereof.
(c) A "Change of Control" shall be deemed to have occurred in the event
that, after the date of this Indenture, either (i) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the Voting Stock of the Guarantor, on
a fully diluted basis, and such ownership is greater than the amount of voting
power of the Voting Stock of the Guarantor, on a fully diluted basis, held by
the Existing Stockholders and their Affiliates on such date; (ii) individuals
who on the date of this Indenture constitute the Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Guarantor's stockholders was approved by a vote
of at least two-thirds of the members of the Board of Directors then in office
who either were members of the Board of Directors on the date of this Indenture
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the members of the Board of Directors
then in office; or (iii) all of the Common Stock of the Issuer is not
beneficially owned by the Guarantor (other than directors' qualifying shares).
(d) In the event that the Issuer makes an Offer to Purchase the Securities,
the Issuer and the Guarantor shall comply with any applicable securities laws
and regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Securities Exchange Act.
SECTION 10.18. Provision of Financial Information. The Guarantor and the
Issuer have agreed that, for so long as any Securities remain outstanding, each
will furnish to the holders of the Securities and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. In addition, the
Guarantor and the Issuer will file with the Trustee within 15 days after it
files them with the Commission copies of the annual and quarterly reports and
the information, documents, and other reports that the Guarantor or the Issuer
is required to file with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act ("SEC Reports"). In the event the Guarantor or the Issuer shall
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cease to be required to file SEC Reports pursuant to the Exchange Act, the
Guarantor and the Issuer will nevertheless continue to file such reports with
the Commission (unless the Commission will not accept such a filing) and the
Trustee. The Guarantor and the Issuer will furnish copies of the SEC Reports to
the holders of Securities at the time the Guarantor or the Issuer is required to
file the same with the Trustee and will make such information available to
investors who request it in writing.
SECTION 10.19. Statement by Officers as to Default. (a) The Issuer and the
Guarantor will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Guarantor ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Guarantor or the Issuer is in default in the performance and observance of
any of the terms, provisions and conditions of Sections 10.04 to 10.18,
inclusive, and if the Guarantor or the Issuer shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
(b) The Issuer and the Guarantor shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Issuer or the Guarantor
becomes aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default and the action which the Issuer or the Guarantor proposes to take with
respect thereto.
SECTION 10.20. Waiver of Certain Covenants. The Issuer or the Guarantor, as
applicable, may omit in any particular instance to comply with any covenant or
condition set forth in Sections 10.04 to 10.17, 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 effective, the obligations of the Issuer and the Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.21. Paying Agent. The Issuer shall not authorize or designate
any Person (including the
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Trustee) as a Paying Agent hereunder unless such Person is located outside of
the United Kingdom.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. (a) At any time prior to March 1,
20001, in the event that the Guarantor receives net cash proceeds from the
public or private sale of its Common Stock (other than Disqualified Stock), the
Issuer (to the extent it receives such proceeds and has not used such proceeds,
directly or indirectly, to redeem or repurchase other securities pursuant to
optional redemption provisions) may, at its option, apply an amount equal to any
such net cash proceeds to redeem, from time to time, Securities in a principal
amount of up to an aggregate amount equal to 33 1/3% of the original principal
amount of the Securities; provided, however, that Securities in an amount equal
to at least 66 2/3% of the original principal amount of the Securities remain
outstanding after each redemption. Each redemption must occur on a Redemption
Date within 180 days of the related sale 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, in amounts of $1,000 or an
integral multiple of $1,000 at a Redemption Price of 109.125% of the principal
amount of the Securities plus accrued interest to but excluding the Redemption
Date (subject to, in the case of a Global Security in bearer form, the right of
the Holder thereof and, in the case of Definitive Securities, 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).
(b) In the event that (i) the Guarantor or the Issuer has become or would
become obligated to pay any Additional Amounts as a result of (x) changes
affecting withholding tax laws or (y) a Listing Failure (as defined herein)
provided that the Issuer has used reasonable best efforts to list and maintain
the listing of the Securities on a "recognized stock exchange" (within the
meaning of Section 841 of the U.K. Income and Corporation Taxes Act 1988) (as
provided for in Section 10.09), and (ii) the Guarantor and the Issuer are unable
to avoid the requirement to pay such Additional Amounts by taking reasonable
measures available to them (including, without limitation, the Guarantor making
payments directly to holders under the
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Securities Guarantee, unless such payment is likely to result in adverse
consequences to the Issuer or the Guarantor), then the Issuer may redeem all,
but not less than all, of the Securities at any time at 100% of the principal
amount thereof on the Redemption Date, together with accrued interest thereon,
if any, to but excluding the Redemption Date (subject to, in the case of a
Global Security in bearer form, the right of the Holder thereof and, in the case
of Definitive Securities, 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). Prior to the publication of the notice of
redemption in accordance with the foregoing, the Issuer shall deliver to the
Trustee an officer's certificate stating that the Issuer is entitled to effect
such redemption based on a written opinion of independent tax counsel or
accounting firm reasonably satisfactory to the Trustee.
(c) The Securities further may be redeemed, as a whole or in part, at the
election of the Issuer, at any time on or after March 1, 2003 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 $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 interest to but excluding the Redemption Date (subject to,
in the case of a Global Security in bearer form, the right of the Holder thereof
and, in the case of Definitive Securities, 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 11.02. Applicability of Article. Redemption of Securities at the
election of the Issuer, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and this Article.
SECTION 11.03. Election To Redeem; Notice to Trustee. The election of the
Issuer to redeem any Securities pursuant to Section 11.01 shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Issuer of
less than all the Securities, the Issuer shall, at least 5 days prior to giving
notice of such redemption pursuant to Section 11.05 (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the
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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
Issuer shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 11.04. 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 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 than
one) registered in the name of any Holder which are to be redeemed, in whole or
in part. The Trustee shall incur no liabilities for any selection made pursuant
to this Section 11.04.
The Trustee shall promptly notify the Issuer and each Security Registrar 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 11.05. 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,
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(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section 11.01(a),
(b) or (c) and, if being made pursuant to Section 11.01(a) or (b), a brief
statement setting forth the Issuer's right to effect such redemption and
the Issuer'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, and
(7) that in the case that a Security is only redeemed in part, the
Issuer 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.
Notice of redemption of Securities to be redeemed at the election of the
Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee
in the name and at the expense of the Issuer. If so requested by the Issuer, the
Trustee shall mail any such notice not later than the date specified for mailing
by the Issuer, which shall not be sooner than 5 days after receipt by the
Trustee of such request (unless a shorter period shall be satisfactory to the
Trustee).
SECTION 11.06. Deposit of Redemption Price. Prior to any Redemption Date,
the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the
Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
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SECTION 11.07. 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 Issuer shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Issuer at the
Redemption Price, together with accrued interest to but excluding 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 bearer of such
Security, in the case of a Global Security in bearer form, and, in the case of a
Definitive Security, to 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 3.07.
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 11.08. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Issuer
designated for that purpose pursuant to Section 10.02 (with, if the Issuer or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Issuer 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.
ARTICLE XII
Discharge of Indenture
SECTION 12.01. Termination of Issuer's Obligations. Except as otherwise
provided in this Section 12.01, each of the Issuer and the Guarantor may
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terminate its obligations under the Securities and this Indenture if:
(a) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities that have been replaced or Securities
for whose payment money or securities have theretofore been held in trust
and thereafter repaid to the Issuer, as provided in Section 12.05) have
been delivered to the Trustee for cancelation and the Issuer has paid all
sums payable by it hereunder; or
(b)(i) all such Securities mature within one year or all of them are
to be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption, (ii) the Issuer
irrevocably deposits in trust with the Trustee during such one-year period,
under the terms of an irrevocable trust agreement in form satisfactory to
the Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations
sufficient (in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee), without consideration of any reinvestment of any interest
thereon, to pay principal, premium, if any, and interest on such Securities
to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (iii) no Default or Event of Default with respect
to the Securities shall have occurred and be continuing on the date of such
deposit, (iv) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Guarantor or the Issuer is a party or by which it
is bound, (v) if at such time the Securities are listed on a national
securities exchange, the Securities will not be delisted as a result of
such deposit, defeasance and discharge, and (vi) the Issuer has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied with.
With respect to the foregoing clause (a), the Issuer's obligations under
Section 6.07 shall survive. With respect to the foregoing clause (b), the
Issuer's obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01,
-121-
10.09, 6.07, 6.10, 6.11, 12.04, 12.05 and 12.06 shall survive until the
Securities have matured or have been redeemed. Thereafter, only the Issuer's
obligations in Sections 6.07, 12.05 and 12.06 shall survive. After any such
irrevocable deposit, the Trustee upon written request shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities and this
Indenture, and the Guarantor's obligations under the Guarantee and this
Indenture, except for those surviving obligations specified above.
SECTION 12.02. Defeasance and Discharge of Indenture. The Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities on the 123rd day after the date of the deposit
referred to in clause (a) of this Section 12.02 if:
(a) with reference to this Section 12.02, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee and has
conveyed all right, title and interest for the benefit of the Holders,
under the terms of an irrevocable trust agreement in form satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the principal of,
premium, if any, and interest, if any, on the Securities, and dedicated
solely to, the benefit of the Holders, in and to (i) money in an amount,
(ii) U.S. Government Obligations that, through the payment of interest,
premium, if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (a), money in an amount or (iii) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and accrued interest on the outstanding Securities at the
Stated Maturity of such principal or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest with respect to
the Securities and to give any related notice of redemption;
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(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Guarantor, the Issuer or any of their Subsidiaries
is a party or by which the Guarantor, the Issuer or any of their
Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default, or event that after the giving of
notice or lapse of time or both could become a Default or Event of Default,
shall have occurred and be continuing on the date of such deposit or during
the period ending on the 123rd day after the date of such deposit;
(d) the Issuer shall have delivered to the Trustee either (i) a ruling
based on relevant law and practice at the time directed to the Trustee from
the Inland Revenue or other relevant tax authority to the effect that the
Holders will not recognize income, gain or loss for U.K. income tax or
other tax purposes as a result of the Issuer's exercise of its option under
this Section 12.02, disregarding income tax on any amounts that would have
been received but for such exercise of its option under this Section 12.02,
and will be subject to U.K. income tax on the same amount and in the same
manner and at the same time as would have been the case if such option had
not been exercised or (ii) an Opinion of Counsel to the same effect as the
ruling described in clause (i) above;
(e) the Issuer shall have delivered to the Trustee (i) either (A) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders will not recognize additional income, gain
or loss for U.S. federal income tax purposes as a result of the Issuer's
exercise of its option under this Section 12.02 and will be subject to U.S.
federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised or (B) an Opinion of Counsel to the same effect as the ruling
described in clause (A) above accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has been a change
in the relevant U.S. federal income tax law since the date of this
Indenture and (ii) an Opinion of Counsel to the effect that (A) the
creation of the defeasance trust does not violate the Investment Company
Act of 1940 and (B) after the passage of 123 days following the deposit
-123-
(except, with respect to any trust funds for the account of any Holder who
may be deemed to be "connected" with the Issuer for purposes of the
Insolvency Xxx 0000 after two years following the deposit), the trust funds
will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law and
either (I) the trust funds will no longer remain the property of the Issuer
(and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally) or (II) if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Issuer (1)
assuming such trust funds remained in the possession of the Trustee prior
to such court ruling to the extent not paid to the Holders, the Trustee
will hold, for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise and (2) no property, rights in property or other interests
granted to the Trustee or the Holders in exchange for, or with respect to,
such trust funds will be subject to any prior rights of holders of other
Debt of the Issuer or any of its Securities;
(f) if at such time the Securities are listed on a national securities
exchange, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securities will not be delisted as a result
of the Issuer's exercise of its opinion under this Section 12.02; and
(g) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 12.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post deposit period
referred to in clause (e)(ii)(B) of this Section 12.02, none of the Issuer's
obligations under this Indenture shall be discharged. Subsequent to the end of
such period with respect to this Section 12.02, the Issuer's obligations in
Sections 3.03, 3.04, 3.05, 3.06, 3.07, 10.01, 10.09, 6.07, 6.10, 6.11, 12.04,
12.05 and 12.06 shall survive until the Securities mature or are redeemed.
Thereafter, only the Issuer's obligations in Sections 6.07, 12.05 and 12.06
shall survive. If and when a ruling from
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the Internal Revenue Service or an Opinion of Counsel referred to in clause
(e)(i) of this Section 12.02 may be provided specifically without regard to, and
not in reliance upon, the continuance of the Issuer's obligations under Section
10.01, then the Issuer's obligations under such sentence shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance with
the other conditions precedent provided for herein relating to the defeasance
contemplated by this Section 12.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Issuer's obligations under the
Securities, any Subsidiary Guarantee, if any, and this Indenture except for
those surviving obligations in the immediately preceding paragraph.
SECTION 12.03. Defeasance of Certain Obligations. The Issuer may omit to
comply with any term, provision or condition set forth in clauses (3) and (4) of
Section 8.01 and Sections 10.05 through 10.18 (except for Secton 10.09 and any
covenant otherwise required by the TIA), and clause (d) of Section 5.01 with
respect to clauses (3) and (4) of Section 8.01, clauses (d) and (e) of Section
5.01 with respect to Sections 10.05 through 10.18, except as aforesaid, and
clauses (c), (f) and (g) of Section 5.01 shall be deemed not to be Events of
Default, in each case with respect to the outstanding Securities if:
(a) with reference to this Section 12.03, the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee and
conveyed all right, title and interest to the Trustee for the benefit of
the Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on the
Securities, and dedicated solely to, the benefit of the Holders, in and to
(i) money in an amount, (ii) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance with
their terms, will provide, not later than one day before the due date of
any payment referred to in this clause (a), money in an amount or (iii) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
-125-
without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and interest on the outstanding Securities on the Stated
Maturity or upon earlier redemption of such principal or interest; provided
that the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Securities and
to give any related notice of redemption;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Guarantor, the Issuer or any of their Subsidiaries
is a party or by which the Guarantor, the Issuer or any of their
Subsidiaries is bound;
(c) immediately after giving effect to such deposit or a pro forma
basis, no Default or Event of Default, or event that after the giving of
notice or lapse of time or both would become a Default or Event of Default,
shall have occurred and be continuing on the date of such deposit or during
the period ending on the 123rd day after the day of such deposit;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, (ii) the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such deposit and the defeasance of the obligations referred to in the first
paragraph of this Section 12.03 and will be subject to U.S. federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred
and (iii) after the passage of 123 days following the deposit (except with
respect to any trust funds for the account of any Holder who may be deemed
to be "connected" with the Issuer for purposes of the Insolvency Xxx 0000
after two years following the deposit), the trust funds will not be subject
to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law, and either (A) the
trust funds will no longer remain the property of the Issuer (and therefore
will
-126-
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditor's rights generally) or
(B) if a court were to rule under any such law in any case or proceeding
that the trust funds remained property of the Issuer (1) assuming such
trust funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold, for
the benefit of the Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise and (2) no
property, rights in property or other interests granted to the Trustee or
the Holders in exchange for, or with respect to, such trust funds will be
subject to any prior rights or holders of other Indebtedness of the Issuer
or any of its Securities;
(e) if at such time the Securities are listed on a national securities
exchange, the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that the Securities will not be delisted as a result of the
Issuer's exercise of its option under Section 12.03; and
(f) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 12.03 have been complied with.
SECTION 12.04. Application of Trust Money. Subject to Section 12.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 12.01, 12.02 or 12.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Securities and this Indenture to the payment
of principal of, premium, if any, and interest on the Securities; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 12.05. Repayment to Issuer. Subject to Sections 6.07, 12.01, 12.02
and 12.03, the Trustee and the Paying Agent shall promptly pay to the Issuer
upon request set forth in an Officers' Certificate any excess money held by them
at any time and thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the Issuer any money
held by them
-127-
for the payment of principal, premium, if any, or interest that remains
unclaimed in accordance with Section 10.02.
SECTION 12.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 12.01,
12.02 or 12.03, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer's
obligations under this Indenture, the Securities Guarantee, and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01, 12.02 or 12.03, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 12.01, 12.02 or 12.03, as the case may
be; provided that, if the Issuer has made any payment of principal of, premium,
if any, or interest on any Securities because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
SECTION 12.07. Insiders. With respect to the determination of the Persons
constituting beneficial owners of Securities and whether any such Person is
"connected" with the Issuer for purposes of Sections 12.02(e)(ii)(B) and
12.03(d)(iii), the Trustee may rely on an Officers' Certificate.
-128-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
Dated:
The Common Seal of
RSL COMMUNICATIONS PLC
was hereto affixed in
the presence of:
[SEAL]
RSL COMMUNICATIONS PLC,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
by
_________________________
Name:
Title:
RSL COMMUNICATIONS, LTD.,
by
_________________________
Name:
Title:
-129-
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 3.05(b)(i) and (iii)
of the Indenture)
The Chase Manhattan Bank,
as Trustee
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Global Trust Services
Re: 9 1/8% Senior Notes due 2008 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of February 27, 1998 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, 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 Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. 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 connection with such transfer, the Owner hereby certifies
A-1
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 Issuer 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
A-2
(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
Issuer or from an affiliate of the Issuer, 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 (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer 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-3
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 3.05(b)(ii) and (iii)
of the Indenture)
The Chase Manhattan Bank,
as Trustee
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Global Trust Services
Re: 9 1/8% Senior Notes due 2008 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of February 27, 1998 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, 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 Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. 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
B-1
will 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
Issuer or from an affiliate of the Issuer, 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 (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer.
B-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer 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.)
X-0
XXXXX X -- Xxxx xx Xxxxxxxxxxxx
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 3.05(c))
The Chase Manhattan Bank,
as Trustee
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Global Trust Services
Re: 9 1/8% Senior Notes due 2008 of
RSL Communications PLC (the "Securities")
Reference is made to the Indenture, dated as of February 27, 1998 (the
"Indenture"), between RSL Communications PLC (the "Issuer"), RSL Communications,
Ltd. (the "Guarantor") and The Chase Manhattan Bank, 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 Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest 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
C-1
Act 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 Issuer or from an affiliate of the Issuer, whichever is later, and the Owner
is not, and during the preceding three months has not been, an affiliate of the
Issuer. 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 Issuer 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.)
C-2
