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EXHIBIT 4.1
EXECUTION COPY
DTI HOLDINGS, INC.
as Issuer
and
THE BANK OF NEW YORK,
Trustee
Indenture
Dated as of February 23, 1998
$ 506,000,000 aggregate principal amount at Maturity
12 1/2% Senior Discount Notes due 2008
12 1/2% Series B Senior Discount Notes due 2008
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DTI HOLDING, INC.
Reconciliation and tie between Trust Indenture Act
and Indenture, dated as of February 23, 1998
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1)...................... 607
(a)(2)...................... 607
(b)......................... 608
Section 312(c)......................... 701
Section 314(a)......................... 703
(a)(4)...................... 1004
(c)(1)...................... 102
(c)(2)...................... 102
(e)......................... 102
Section 315(b)......................... 601
Section 316(a)(last sentence).......... 101 ("Outstanding")
(a)(1)(A)................... 502, 512
(a)(1)(B)................... 513
(b)......................... 508
(c)......................... 104(d)
Section 317(a)(1)...................... 503
(a)(2)...................... 504
(b)......................... 1003
Section 318(a)......................... 111
--------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
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Table of Contents
Page
PARTIES......................................................................... 1
RECITALS OF THE COMPANY......................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions....................................................... 1
Accreted Value.................................................... 2
Acquired Indebtedness............................................. 3
Act............................................................... 3
Affiliate......................................................... 3
Agent Members..................................................... 4
Asset Sale........................................................ 4
Attributable Value................................................ 4
Authenticating Agent.............................................. 4
Average Life...................................................... 5
Bankruptcy Law.................................................... 5
Board of Directors................................................ 5
Board Resolution.................................................. 5
Business Day...................................................... 5
Capital Stock..................................................... 5
Capitalized Lease Obligation...................................... 5
Cash Equivalents.................................................. 5
Change of Control................................................. 6
Commission........................................................ 7
Company........................................................... 7
Company Request" or "Company Order................................ 7
Consolidated Adjusted Net Income.................................. 7
Consolidated Indebtedness to Consolidated Operating Cash Flow
Ratio........................................................... 7
Consolidated Interest Expense..................................... 8
Consolidated Operating Cash Flow.................................. 8
Consolidated Tax Expense.......................................... 9
Corporate Trust Office............................................ 9
Currency Agreements............................................... 9
Default........................................................... 9
Defaulted Interest................................................ 9
Depositary........................................................ 9
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Disinterested Director........................................... 9
Dollar" or "$.................................................... 9
Event of Default................................................. 9
Exchange Act..................................................... 9
Exchange Notes................................................... 9
Exchange Offer................................................... 10
Exchange Offer Registration Statement............................ 10
Existing Subsidiaries............................................ 10
fair market value................................................ 10
Generally Accepted Accounting Principles" or "GAAP............... 10
Global Notes..................................................... 10
Guarantee........................................................ 10
Holder........................................................... 10
Incur" or "incur................................................. 10
Indebtedness..................................................... 10
Indenture........................................................ 11
Initial Notes.................................................... 11
Interest Payment Date............................................ 12
Interest Rate Agreements......................................... 12
Investment....................................................... 12
Issue Date....................................................... 12
Lien............................................................. 12
Maturity......................................................... 12
Moody's.......................................................... 12
Net Cash Proceeds................................................ 13
Non-Registration Opinion and Supporting Evidence................. 13
Non-U.S. Person.................................................. 13
Note Register" and "Note Registrar............................... 13
Notes............................................................ 13
Notes Registration Rights Agreement.............................. 13
Officers' Certificate............................................ 14
Offshore Global Note............................................. 14
Offshore Note Exchange Date...................................... 14
Offshore Physical Note........................................... 14
Opinion of Counsel............................................... 14
Outstanding...................................................... 14
Participant...................................................... 15
Paying Agent..................................................... 15
Permitted Holder................................................. 15
Permitted Indebtedness........................................... 15
Permitted Investments............................................ 17
Permitted Liens.................................................. 18
Person........................................................... 20
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Physical Notes............................................................. 20
Place of Payment........................................................... 20
Predecessor Note........................................................... 20
Preferred Stock............................................................ 20
Private Placement Legend................................................... 20
Public Equity Offering..................................................... 20
Purchase Money Indebtedness................................................ 20
QIB........................................................................ 21
Qualified Capital Stock.................................................... 21
Redeemable Capital Stock................................................... 21
Registration Statement..................................................... 21
Regular Record Date........................................................ 21
Regulation S............................................................... 21
Regulation S Certificate................................................... 21
Responsible Officer........................................................ 21
Restricted Payment......................................................... 21
Restricted Subsidiary...................................................... 22
Rule 144A Certificate...................................................... 22
S&P........................................................................ 22
Shelf Registration Statement............................................... 22
Significant Subsidiary..................................................... 22
Special Record Date........................................................ 22
Stated Maturity............................................................ 22
Subordinated Indebtedness.................................................. 22
Subsidiary................................................................. 22
Tax........................................................................ 22
Taxing Authority........................................................... 23
Telecommunications Assets.................................................. 23
Telecommunications Business................................................ 23
Trust Indenture Act" or "TIA............................................... 23
Trustee.................................................................... 23
United States.............................................................. 23
United States Dollar Equivalent............................................ 23
Unrestricted Subsidiary.................................................... 24
U.S. Global Note........................................................... 24
U.S. Government Securities................................................. 24
U.S. Physical Notes........................................................ 24
Vice President............................................................. 25
Voting Stock............................................................... 25
Warrant Agreement.......................................................... 25
Wholly Owned............................................................... 25
SECTION 102. Compliance Certificates and Opinions......................... 25
SECTION 103. Form of Documents Delivered to Trustee....................... 26
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SECTION 104. Acts of Holders ............................................... 26
SECTION 105. Notices, etc., to Trustee and Company ......................... 28
SECTION 106. Notice to Holders; Waiver ..................................... 28
SECTION 107. Effect of Headings and Table of Contents ...................... 29
SECTION 108. Successors and Assigns ........................................ 29
SECTION 109. Separability Clause ........................................... 29
SECTION 110. Benefits of Indenture ......................................... 29
SECTION 111. Governing Law ................................................. 29
SECTION 112. Legal Holidays ................................................ 29
SECTION 113. Trust Indenture Act Controls .................................. 30
SECTION 114. No Recourse Against Others .................................... 30
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally ............................................... 30
SECTION 202. Form of Trustee's Certificate of Authentication ............... 31
SECTION 203. Restrictive Legends ........................................... 32
SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period ............................................. 35
ARTICLE THREE
THE NOTES
SECTION 301. Amount ........................................................ 36
SECTION 302. Denominations ................................................. 36
SECTION 303. Execution, Authentication, Delivery and Dating ................ 37
SECTION 304. Temporary Notes ............................................... 38
SECTION 305. Registration, Registration of Transfer and Exchange ........... 38
SECTION 306. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Stolen Notes ................... 40
SECTION 307. Payment of Interest; Interest Rights Preserved ................ 40
SECTION 308. Persons Deemed Owners ......................................... 42
SECTION 309. Cancellation .................................................. 42
SECTION 310. Computation of Interest ....................................... 42
SECTION 311. Book-Entry Provisions for Global Notes ........................ 43
SECTION 312. Transfer Provisions ........................................... 44
SECTION 313. [Reserved] .................................................... 52
SECTION 314. Form of Regulation S Certificate .............................. 52
SECTION 315. Form of Rule 144A Certificate ................................. 54
SECTION 316. CUSIP Numbers ................................................. 55
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................ 55
SECTION 402. Application of Trust Money..................................... 56
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................................. 57
SECTION 502. Acceleration of Maturity; Rescission and Annulment............. 58
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee 60
SECTION 504. Trustee May File Proofs of Claim............................... 61
SECTION 505. Trustee May Enforce Claims Without Possession of Notes......... 62
SECTION 506. Application of Money Collected................................. 62
SECTION 507. Limitation on Suits............................................ 62
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest....................................................... 63
SECTION 509. Restoration of Rights and Remedies............................. 63
SECTION 510. Rights and Remedies Cumulative................................. 64
SECTION 511. Delay or Omission Not Waiver................................... 64
SECTION 512. Control by Holders............................................. 64
SECTION 513. Waiver of Past Defaults........................................ 64
SECTION 514. Waiver of Stay or Extension Laws............................... 65
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults............................................. 65
SECTION 602. Certain Rights of Trustee...................................... 66
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes...... 67
SECTION 604. May Hold Notes................................................. 68
SECTION 605. Money Held in Trust............................................ 68
SECTION 606. Compensation and Reimbursement................................. 68
SECTION 607. Corporate Trustee Required; Eligibility........................ 69
SECTION 608. Resignation and Removal; Appointment of Successor.............. 69
SECTION 609. Acceptance of Appointment by Successor......................... 71
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.... 71
SECTION 611. Appointment of Authenticating Agent............................ 72
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders...................73
SECTION 702. Reports by Trustee.............................................74
SECTION 703. Reports by Company.............................................74
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms...........75
SECTION 802. Successor Substituted..........................................76
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............76
SECTION 902. Supplemental Indentures with Consent of Holders................77
SECTION 903. Execution of Supplemental Indentures...........................78
SECTION 904. Effect of Supplemental Indentures..............................79
SECTION 905. Conformity with Trust Indenture Act............................79
SECTION 906. Reference in Notes to Supplemental Indentures..................79
SECTION 907. Notice of Supplemental Indentures..............................79
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest...........79
SECTION 1002. Maintenance of Office or Agency...............................80
SECTION 1003. Money for Notes Payments to Be Held in Trust..................80
SECTION 1004. Corporate Existence...........................................82
SECTION 1005. Payment of Taxes and Other Claims.............................82
SECTION 1006. Maintenance of Properties.....................................82
SECTION 1007. Statement by Officers As to Default...........................83
SECTION 1008. Limitation on Indebtedness....................................83
SECTION 1009. Limitation on Restricted Payments.............................84
SECTION 1010. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.......................................87
SECTION 1011. Limitation on Transactions with Affiliates....................88
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SECTION 1012. Limitation on Liens......................................... 88
SECTION 1013. Limitations on Issuances of Guarantees of Indebtedness
by Restricted Subsidiaries.................................. 89
SECTION 1014. Purchase of Notes upon a Change of Control.................. 89
SECTION 1015. Limitation on Sale of Assets................................ 91
SECTION 1016. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries........................... 93
SECTION 1017. Limitation on Investments in Unrestricted Subsidiaries...... 94
SECTION 1018. Limitation on Sale-Leaseback Transactions................... 94
SECTION 1019. Business of the Company..................................... 95
SECTION 1020. Provision of Financial Statements and Reports............... 95
SECTION 1021. Waiver of Certain Covenants................................. 95
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption......................................... 96
SECTION 1102. Redemption.................................................. 96
SECTION 1103. Applicability of Article.................................... 97
SECTION 1104. Election to Redeem; Notice to Trustee....................... 97
SECTION 1105. Selection by Trustee of Notes to Be Redeemed................ 97
SECTION 1106. Notice of Redemption........................................ 98
SECTION 1107. Deposit of Redemption Price................................. 98
SECTION 1108. Notes Payable on Redemption Date............................ 99
SECTION 1109. Notes Redeemed in Part...................................... 99
ARTICLE TWELVE
[Reserved]
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance......................................... 100
SECTION 1302. Defeasance and Discharge.................................... 100
SECTION 1303. Covenant Defeasance......................................... 101
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............. 101
SECTION 1305. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions.................... 103
SECTION 1306. Reinstatement............................................... 103
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INDENTURE, dated as of February 23, 1998, between DTI HOLDINGS, INC., a
corporation duly organized and existing under the laws of the State of Missouri
(herein called the "Company"), having its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK, a New York banking
corporation, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of its 12
1/2% Senior Discount Notes due 2008 (the "Initial Notes"), and its 12 1/2%
Series B Senior Discount Notes due 2008 (the "Exchange Notes" and, together
with the Initial Notes, the "Notes"), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the effectiveness of
the Shelf Registration Statement (as defined herein), this Indenture shall be
subject to, and shall be governed by the provisions of, the Trust Indenture Act
that are required to be part of or deemed to be part of and to govern the
indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly executed
and duly issued by the Company and authenticated and delivered hereunder by the
Trustee or the Authenticating Agent, the valid obligations of the Company and
to make this Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, 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 at the date hereof;
and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Accreted Value" means, for any specified date (the "Specified Date") the
amount calculated pursuant to clause (i), (ii), (iii) or (iv) below with
respect to each $1,000 principal amount at Maturity of Securities:
(i) if the Specified Date occurs on one or more of the following
dates (each a "Semiannual Accrual Date"), the Accreted Value shall equal
$543.92 on the Issue Date, and for any Semiannual Accrual Date
thereafter, the amount set forth below:
Semiannual Accrual Date Accreted Value
September 1, 1998 ........................... $579.48
March 1, 1999 ............................... 615.70
September 1, 1999 ........................... 654.18
March 1, 2000 ............................... 695.07
September 1, 2000 ........................... 738.51
March 1, 2001 ............................... 784.66
September 1, 2001 ........................... 833.71
March 1, 2002 ............................... 885.81
September 1, 2002 ........................... 941.18
March 1, 2003 ............................... 1,000.00
(ii) if the Specified Date occurs before the first Semiannual
Accrual Date, the Accreted Value shall equal the sum of (a) the original
issue price and (b) an amount
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equal to the product of (1) the Accreted Value for the first Semiannual
Accrual Date less the original issue price multiplied by (2) a fraction,
the numerator of which is the number of days from the date of the
Indenture to the specified date, using a 360-day year of twelve 30-day
months, and the denominator of which is the number of days elapsed from
the date of the Indenture to the first Semiannual Accrual Date, using a
360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semiannual Accrual
Dates, the Accreted Value shall equal the sum of (A) the Accreted Value
for the Semiannual Accrual Date immediately preceding such Specified Date
and (B) an amount equal to the product of (i) the Accreted Value for the
immediately following Semiannual Accrual Date less the Accreted Value for
the immediately preceding Semiannual Accrual Date, and (ii) a fraction,
the numerator of which equals the number of days from the immediately
preceding Semiannual Accrual Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is 180; and
(iv) if the Specified Date is on or after the last Semiannual
Accrual Date, the Accreted Value shall equal $1,000.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person becomes a Restricted Subsidiary or (b) assumed in connection
with the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition; provided that, for purposes of
Section 1008, such Indebtedness shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Restricted Subsidiary.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person
that owns, directly or indirectly, 5% or more of such specified Person's Voting
Stock or any executive officer or director of any such specified Person or
other Person or, with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 311.
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"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the
properties and assets of the Company or its Subsidiaries; or (iii) any other
properties or assets of the Company or any Subsidiary, other than in the
ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include any transfer of properties or assets (A) that is
governed by the provisions of Article Eight, (B) of the Company to any
Restricted Subsidiary, or of any Restricted Subsidiary to the Company or any
Restricted Subsidiary in accordance with the terms of this Indenture, (C)
having a fair market value of less than $500,000 (or, to the extent not
denominated in United States dollars, the United States Dollar Equivalent
thereof) in any given fiscal year, (D) in any Permitted Telecommunications
Asset Sale, or (E) by the Company or a Restricted Subsidiary to a Person who is
not an Affiliate of the Company in exchange for Telecommunications Assets (or
not less than 66 2/3% of the outstanding Voting Stock of a Person that becomes
a Restricted Subsidiary, the assets of which consist primarily of
Telecommunications Assets) or related telecommunications services where in the
good faith judgment of the Company the fair market value of the
Telecommunications Assets (or such Voting Stock) or services so received is at
least equal to the fair market value of the properties or assets disposed of
or, if less, the difference is received by the Company in cash in an amount at
least equal to such difference.
"Attributable Value" means, with respect to any lease at the time of
determination, the present value (discounted at the interest rate implicit in
the lease or, if not known, at the Company's incremental borrowing rate) of the
obligations of the lessee of the property subject to such lease for rental
payments during the remaining term of the lease included in such transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended, or until the earliest date on which the
lessee may terminate such lease without penalty or upon payment of penalty (in
which case the rental payments shall include such penalty), after excluding
from such rental payments all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water utilities and
similar charges.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Notes.
"Average Life" means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (a) the sum of the products of
(i) the number of years from the date of determination to the date or dates of
each successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness multiplied by (ii) the amount
of each such principal payment by (b) the sum of all such principal payments.
"Bankruptcy Law" means Title 11 of the United States Code, as amended, or
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any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Company.
"Board Resolution" means a copy of a resolution certified by the Secretary
or any assistant secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Notes, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated and whether voting or non-voting) of such
Person's capital stock, and any rights (other than debt securities convertible
into capital stock), warrants or options exchangeable for or convertible into
such capital stock, whether now outstanding or issued after the Issue Date.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required
to be classified and accounted for as a capital lease obligation under GAAP
and, for the purposes of this Indenture, the amount of such obligation at any
date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with a maturity
of 180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support thereof); (ii) certificates of deposit or acceptances with a maturity
of 180 days or less of any financial institution that is a member of the
Federal Reserve System, in each case having combined capital and surplus and
undivided profits of not less than $500,000,000; (iii) commercial paper with a
maturity of 180 days or less issued by a corporation that is not an Affiliate
of the Company and is organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by S&P or at least
P-l by ▇▇▇▇▇'▇; and (iv) money market funds which invest substantially all of
their assets in securities of the type described in the preceding clauses (i)
through (iii).
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the
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Exchange Act), other than Permitted Holders, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all securities that
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total outstanding Voting Stock of the Company; (b) the Company
consolidates with, or merges with or into another Person or conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
Person, or any Person consolidates with or merges with or into the Company, in
any such event pursuant to a transaction in which the outstanding Voting Stock
of the Company is converted into or exchanged for cash, securities or other
property, other than any such transaction (i) where the outstanding Voting
Stock of the Company is not converted or exchanged at all (except to the extent
necessary to reflect a change in the jurisdiction of incorporation of the
Company) or is converted into or exchanged for (A) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation or (B)
Voting Stock (other than Redeemable Capital Stock) of the surviving or
transferee corporation and cash, securities and other property in an amount
that could be paid by the Company as a Restricted Payment as described under
Section 1009 and (ii) immediately after such transaction, no "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than Permitted Holders, is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
total outstanding Voting Stock of the surviving or transferee corporation; (c)
during any consecutive two-year period, individuals who at the beginning of
such period constituted the Board of Directors (together with any new directors
whose election to such Board of Directors, or whose nomination for election by
the shareholders of the Company, was approved by a vote of 66 2/3% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; (d) the Company is liquidated or dissolved or a
special resolution is passed by the shareholders of the Company approving the
plan of liquidation or dissolution other than in a transaction which complies
with the provisions of Section 801 or (e) a Permitted Holder holds (i) less
than 15% of the outstanding Common Stock at any time prior to an Initial Public
Equity Offering or (ii) more than 65% of the outstanding Common Stock at any
time after an Initial Public Equity Offering.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
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"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Vice President, its Treasurer or any assistant
treasurer, and delivered to the Trustee.
"Consolidated Adjusted Net Income" means, for any period, the consolidated
net income (or loss) of the Company and all Restricted Subsidiaries for such
period as determined in accordance with GAAP, adjusted by excluding, without
duplication, (a) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto), (b) any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to asset dispositions other
than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) net
income (but not loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior
to the date of combination, (e) the net income of any Restricted Subsidiary, to
the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is not at the date of determination
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary or its
shareholders and (f) any gain or loss, net of taxes, realized upon the
termination of any employee benefit plan.
"Consolidated Indebtedness to Consolidated Operating Cash Flow Ratio"
means, at any date of determination, the ratio of (i) the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries outstanding at the
date of determination as determined on a consolidated basis in accordance with
GAAP to (ii) the aggregate amount of Consolidated Operating Cash Flow for the
then most recent four full fiscal quarters for which consolidated financial
statements of the Company are available preceding the date of the transaction
giving rise to the need to calculate the Consolidated Indebtedness to
Consolidated Operating Cash Flow Ratio (such four fiscal quarter period being
referred to as the "Four Quarter Period").
"Consolidated Interest Expense" of the Company means, for any period,
without duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest, (v) the consolidated amount
of any interest capitalized by the Company and (vi) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease
Obligations of the Company and its Restricted Subsidiaries paid, accrued and/or
scheduled to be paid or accrued during such period, excluding, however, any
amount of such interest of any Restricted Subsidiary if the net
17
8
income of such Restricted Subsidiary is excluded in the calculation of
Consolidated Adjusted Net Income pursuant to clause (e) of the definition
thereof (but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Consolidated Adjusted Net Income
pursuant to clause (e) of the definition thereof); provided that the
Consolidated Interest Expense attributable to interest on any Indebtedness
computed on a pro forma basis and (A) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest, shall be computed
by applying, at the option of the Company, either the fixed or the floating
rate.
"Consolidated Operating Cash Flow" means, with respect to any period, the
Consolidated Adjusted Net Income for such period (a) increased by (to the
extent included in computing Consolidated Adjusted Net Income) the sum of (i)
the Consolidated Tax Expense for such period (other than taxes attributable to
extraordinary, unusual or non-recurring gains or losses); (ii) Consolidated
Interest Expense for such period; (iii) depreciation of the Company and its
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; (iv) amortization of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; and (v) any other non-cash charges that were deducted in computing
Consolidated Adjusted Net Income (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period) of the Company
and its Restricted Subsidiaries for such period in accordance with GAAP and (b)
decreased by any non-cash gains that were included in computing Consolidated
Adjusted Net Income.
"Consolidated Tax Expense" means, for any period, the provision for
federal, state, provincial, local and foreign income taxes of the Company and
all Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed solely to protect against or manage exposure to
fluctuations in currency exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
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"Depositary" means The Depository Trust Company, its nominees and
successors.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under this Indenture, a member
of the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Notes Registration Rights Agreement.
"Existing Subsidiaries" means Digital Teleport, Inc.
"fair market value" means, with respect to any asset or property, the
price that could be negotiated in an arm's length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
pressure or compulsion to complete the transaction. Unless otherwise specified
in the Indenture, fair market value shall be determined in good faith by the
Company's officers.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States on the date of this
Indenture.
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"Global Notes" has the meaning set forth in Section 201.
"Guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Holder" means the Person in whose name a Note is registered in the Note
Register.
"Incur" or "incur" means, with respect to any Indebtedness, to create,
issue, assume, guarantee or in any manner become directly or indirectly liable
for the payment of, or otherwise incur such Indebtedness; provided that neither
the accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all liabilities, contingent or otherwise, of such Person: (i) for borrowed
money (including overdrafts), (ii) in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (iii) evidenced by bonds, notes, debentures or other
similar instruments, (iv) for the deferred purchase price of property or
services or created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, or (v)
for Capitalized Lease Obligations; (b) all obligations of such Person under or
in respect of Interest Rate Agreements or Currency Agreements; (c) all
indebtedness referred to in (but not excluded from) the preceding clauses of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or with respect to
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured); (d) all guarantees by such Person of Indebtedness
referred to in this definition of any other Person; and (e) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends.
The amount of Indebtedness of any Person at any date shall be the outstanding
principal balance at such date (or, in the case of a revolving credit or other
similar facility, the total amount of funds outstanding and/or available for
borrowing on the date of determination) of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided that the amount outstanding at any time of any Indebtedness issued
with original issue
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11
discount shall equal the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount with respect to such
Indebtedness at such time as determined in conformity with GAAP. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock, such fair
market value shall be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock. Notwithstanding the foregoing, trade
accounts and accrued liabilities arising in the ordinary course of business and
any liability for federal, state or local taxes or other taxes owed by such
Person shall not be considered Indebtedness for purposes of this definition.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning specified in the recitals to this
Indenture.
"Interest Payment Date", when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements or arrangements (including,
without limitation, interest rate swaps, caps, floors, collars and other
similar agreements) designed solely to protect the Company or any Restricted
Subsidiary against fluctuations in interest rates in respect of Indebtedness of
the Company or any Restricted Subsidiary.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase, acquisition or
ownership by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued or owned by, any other
Person and all other items that would be classified as investments on a balance
sheet prepared in accordance with GAAP. In addition, the fair market value of
the net assets of any Subsidiary at the time that such Subsidiary is designated
an Unrestricted Subsidiary shall be deemed to be an "Investment" made by the
Company in such Unrestricted Subsidiary at such time. "Investments" shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices and any loans, advances or extensions of
credit to an employee of the Company or any Subsidiaries made in the ordinary
course of business; provided that such loans, advances or extensions of credit
shall not have an aggregate principal amount in excess of $1,000,000 at any one
time outstanding.
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"Issue Date" means the date of this Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any
property of any kind, real or personal, movable or immovable, now owned or
hereafter acquired. A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"Maturity" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, call for redemption or purchase or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of, or stock or other
assets when disposed for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary), net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties which are the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an officers' certificate delivered to the
Trustee and (b) with respect to any issuance or sale of Capital Stock or
options, warrants or rights to purchase Capital Stock, or debt securities or
Redeemable Capital Stock that have been converted into or exchanged for
Qualified Capital Stock, as referred to under Section 1009, the proceeds of such
issuance or sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Subsidiary of the Company), net of attorney's fees, accountant's fees and
brokerage, consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
22
13
payable as a result thereof.
"Non-Registration Opinion and Supporting Evidence" has the meaning
specified in Section 312.
"Non-U.S. Person" means a person who is not a U.S. person as defined in
Regulation S.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 305.
"Notes" has the meaning stated in the first recital of this Indenture.
"Notes Registration Rights Agreement" means the Notes Registration Rights
Agreement dated as of February 23, 1998, among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and TD Securities (USA)
Inc.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer or any Vice President, and by the Treasurer, any
assistant treasurer, the Secretary or any assistant secretary of the Company,
and delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in Section 201.
"Offshore Note Exchange Date" has the meaning set forth in Section 203.
"Offshore Physical Note" has the meaning set forth in Section 201.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or repayment at
the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Notes;
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14
(iii) Notes, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Thirteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount at Maturity of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder and, for
the purpose of making the calculations required by TIA Section 313, Notes owned
by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.
"Participant" is defined to mean, with respect to the Depositary, Persons
who have accounts with the Depositary.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to make payments in respect of any Notes on
behalf of the Company.
"Permitted Holder" means either of (a) (i) collectively, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
his spouse, issues or other members of his immediate family (collectively, the
"▇▇▇▇▇▇▇▇▇ Family"), (ii) trusts or other entities created for the benefit of
any member of the ▇▇▇▇▇▇▇▇▇ Family, (iii) entities controlled by any of the
▇▇▇▇▇▇▇▇▇ Family and (iv) in the event of the death of any member of the
▇▇▇▇▇▇▇▇▇ Family, the heirs or testamentary legatees of such member of the
▇▇▇▇▇▇▇▇▇ Family, or (b) collectively, KLT and any of its controlled Affiliates
(as defined under Rules 13d-3 and 13d-5 under the Exchange Act).
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company pursuant to the Notes;
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15
(b) Indebtedness of the Company owing to any Restricted Subsidiary
(but only so long as such Indebtedness is held by such Restricted
Subsidiary); provided that any Indebtedness of the Company owing to any
such Restricted Subsidiary is subordinated in right of payment from and
after such time as the Notes shall become due and payable (whether at
Stated Maturity, by acceleration or otherwise) to the payment and
performance of the Company's obligations under the Notes; provided
further that any transaction pursuant to which any Restricted Subsidiary
to which such Indebtedness is owed, ceases to be a Restricted Subsidiary
shall be deemed to be an incurrence of such Indebtedness by such
Restricted Subsidiary that is not permitted by this clause (b);
(c) Indebtedness of the Company or any Restricted Subsidiaries
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with one or more commercial bank
facilities permitted under clause (j) of this definition or in connection
with the acquisition of or disposition of assets, including, without
limitation, shares of Capital Stock;
(d) Indebtedness of the Company or any Restricted Subsidiary under
letter of credit facilities that are used to finance trade payables in
the ordinary course of business and under which recourse to the Company
or any Restricted Subsidiary is limited to the cash securing such letters
of credit;
(e) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements and Interest Rate Agreements entered into in the
ordinary course of business; provided that such agreements do not
increase the Indebtedness of the obligor outstanding at any time other
than as a result of fluctuations in foreign currency exchange rates or
interest rates or by reason of fees, indemnities and compensation payable
thereunder;
(f) Indebtedness of the Company or any Restricted Subsidiary in
addition to that permitted to be incurred pursuant to clauses (a) through
(e) above in an aggregate principal amount not in excess of $25,000,000
(or, to the extent not denominated in United States dollars, the United
States Dollar Equivalent thereof) at any one time outstanding;
(g) Purchase Money Indebtedness;
(h) Indebtedness of any Restricted Subsidiary to the Company;
(i) Prior to December 31, 2000, Indebtedness of the Company or any
Restricted Subsidiary not to exceed, at any one time outstanding, two
times (A) the Net Cash Proceeds received by the Company after the date of
this Indenture as a capital contribution or from the issuance and sale of
its Qualified Capital Stock to a Person
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that is not a Subsidiary of the Company, to the extent such Net Cash
Proceeds have not been used pursuant to clause (a)(3)(B) or clauses (b)(ii)
and (iii) of Section 1009 to make a Restricted Payment and (B) 80% of the
fair market value of property (other than cash and Cash Equivalents)
received by the Company after the date of this Indenture as a contribution
of capital or from the sale of its Qualified Capital Stock to a Person that
is not a Subsidiary of the Company, to the extent such capital contribution
or sale of Qualified Capital Stock has not been used pursuant to clause
(a)(3)(B) of Section 1009 to make a Restricted Payment; provided that such
Indebtedness does not mature prior to the Stated Maturity of the Notes and
has an Average Life longer than the Notes;
(j) Indebtedness of the Company or any Restricted Subsidiary under
one or more commercial bank facilities outstanding at any time in an
aggregate principal amount not to exceed $70,000,000 plus the greater of
(x) 80% of the accounts receivable of the Company or (y) $30,000,000; and
(k) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing") of any
Indebtedness of the Company (including all or any part of the Notes) or
any Restricted Subsidiary by the Company, or any refinancing of any
Indebtedness of any Restricted Subsidiary by such Restricted Subsidiary,
other than Indebtedness incurred pursuant to clauses (b) through (f) and
(h) through (j) of this definition, including any successive
refinancings, so long as (i) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced, plus the amount of any premium reasonably determined as
necessary to accomplish such refinancing and the amount of expenses of
the Company incurred in connection with such refinancing, (ii) in the
case of any refinancing of Subordinated Indebtedness, such new
Indebtedness is made subordinate to the Notes at least to the same extent
as the Indebtedness being refinanced, (iii) in the case of any
refinancing of Indebtedness that is pari passu in right of payment with
the Notes, such new Indebtedness is made pari passu in right of payment
with, or subordinate in right of payment to, the Notes and (iv) (A) if
such indebtedness being refinanced has an Average Life longer than the
Average Life of the Notes, such new Indebtedness has an Average Life
longer than the Average Life of the Notes and a final Stated Maturity
later than the final Stated Maturity of the Notes and (B) if such
Indebtedness being refinanced has an Average Life shorter than the
Average Life of the Notes, such Indebtedness has an Average Life longer
than, and a Final Stated Maturity Date later than, such Indebtedness
being so refinanced.
"Permitted Investments" means any of the following:
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(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other Person
becomes a Restricted Subsidiary and the Company or another Restricted
Subsidiary owns at least 66 2/3% of the outstanding Voting Stock of such
other Person or (ii) such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all of its assets to,
the Company or a Restricted Subsidiary;
(d) Investments by the Company or any Restricted Subsidiary in any
Person engaged in the delivery of telephony or other telecommunications
or data transmission services in North America, the sum of which does not
exceed $20,000,000 at any one time outstanding; or
(e) Investments in existence on the date of this Indenture.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of the issuance of the Notes;
(b) Liens on any property or assets of a Subsidiary granted in favor
of the Company or any Restricted Subsidiary;
(c) Liens securing the Notes;
(d) any interest or title of a lessor under any Capitalized Lease
Obligation or of a seller under any Purchase Money Indebtedness permitted
by this Indenture;
(e) Liens securing Indebtedness incurred under clause (j) of the
definition of "Permitted Indebtedness";
(f) statutory Liens or landlord's and carrier's, warehouseman's,
mechanic's, supplier's, materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate
proceeding, if a reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall
have been made therefor;
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(h) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature (including, without limitation, indefeasible rights to use)
incurred in the ordinary course of business (other than contracts for the
payment of money);
(i) easements, servitudes, rights-of-way, restrictions (including,
without limitation, zoning restrictions) and other similar charges or
encumbrances not interfering in any material respect with the business of
the Company or any Subsidiary incurred in the ordinary course of
business;
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(k) Liens securing Acquired Indebtedness created prior to (and not
in connection with or in contemplation of) the incurrence of such
Indebtedness by the Company or any Subsidiary; provided that such Lien
does not extend to any property or assets of the Company or any
Subsidiary other than the assets acquired in connection with the
incurrence of such Acquired Indebtedness;
(l) Liens securing Interest Rate Agreements or Currency Agreements
permitted to be incurred pursuant to clause (e) of the definition of
"Permitted Indebtedness" or any collateral for the Indebtedness to which
such Interest Rate Agreements or Currency Agreements relate;
(m) Liens arising from purchase money mortgages and purchase money
security interests; provided that (i) the related Indebtedness shall not
be secured by any property or assets of the Company or any Subsidiary
other than the property and assets so acquired and (ii) the Lien securing
such Indebtedness shall be created within 60 days of such acquisition;
(n) Liens with respect to assets of a Restricted Subsidiary granted
by such Restricted Subsidiary to the Company or a Restricted Subsidiary
to secure Indebtedness owing to the Company or such Restricted
Subsidiary;
(o) pledges and deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of statutory obligations; and
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(p) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (o); provided
that any such extension, renewal or replacement shall be no more
restrictive in any material respect than the Lien so extended, renewed or
replaced and shall not extend to any additional property or assets.
"Permitted Telecommunications Asset Sale" means any transfer, conveyance,
sale, lease or other disposition of a capital asset that is a
Telecommunications Asset, the proceeds of which are treated as revenues
(including deferred revenues) by the Company in accordance with GAAP.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, business
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Notes" has the meaning set forth in Section 201.
"Place of Payment" means the office or agency maintained by the Company
where the principal of (and premium, if any, on) and interest on the Notes are
payable as specified in Section 1002.
"Predecessor Note" of any particular Note, means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated) of such
Person's preferred or preference stock whether now outstanding, or issued after
the Issue Date, and including, without limitation, all classes and series of
preferred or preference stock of such Person.
"Private Placement Legend" has the meaning set forth in Section 203.
"Public Equity Offering" means an underwritten public offering or flotation
of Common Stock of the Company which has been registered under the Securities
Act.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiaries incurred at any time within 270 days of, and for the
purpose of financing all or any part of the cost of, the construction,
expansion, installation, acquisition or improvement by the Company or any
Restricted Subsidiary of the Company of any new Telecommunications Assets or not
less than 66 2/3 percent of the outstanding Voting Stock of a Person that
becomes a Restricted Subsidiary the assets of which consist primarily of
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Telecommunications Assets constructed, expanded, installed, acquired or
improved after the date of this Indenture; provided that the proceeds of such
Indebtedness are expended for such purposes within such 270-day period; and
provided further that the Net Cash Proceeds from the issuance of such
Indebtedness does not exceed, as of the date of incurrence of such
Indebtedness, 100% of the lesser of cost or fair market value of such
Telecommunications Assets.
"QIB" means a "Qualified Institutional Buyer" within the meaning of Rule
144A under the Securities Act.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the Notes or is redeemable at the option of the holder
thereof at any time prior to such final Stated Maturity, or is convertible into
or exchangeable for debt securities at any time prior to such final Stated
Maturity; provided that any Capital Stock that would not constitute Redeemable
Capital Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes shall not constitute Redeemable Capital Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable in any material respect to the holders of such
Capital Stock than the provisions contained in Sections 1015 and 1014 are to the
Holders, and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant to
the Sections 1015 and 1014.
"Registration Statement" means the Registration Statement as defined in the
Notes Registration Rights Agreement.
"Regular Record Date" has the meaning specified in Section 301.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" has the meaning specified in Section 314.
"Responsible Officer", when used with respect to the Trustee, means
any Vice President, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, 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
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corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Payment" has the meaning specified in Section 1009.
"Restricted Subsidiary" means the Existing Subsidiaries and any Subsidiary
that is not designated an Unrestricted Subsidiary by the Board of Directors.
"Rule 144A Certificate" has the meaning specified in Section 315.
"S&P" means Standard and Poor's Ratings Services, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., and its successors.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Notes Registration Rights Agreement.
"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 Company accounted for more than 10% of the
consolidated revenues of the Company and the Restricted Subsidiaries, (ii) as of
the end of such fiscal year, was the owner of more than 10% of the consolidated
assets of the Company and the Restricted Subsidiaries, in each case as set forth
on the most recently available consolidated financial statements of the Company
and the Restricted Subsidiaries for such fiscal year, or (iii) owns one or more
licenses or concessions to provide telecommunications or data transmission
services in the United States.
"Special Record Date" for the payment of any Defaulted Interest on the
Notes means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means any Person a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by the Company or
by one or more other Subsidiaries or by the Company and one or more other
Subsidiaries.
"Tax" is defined to mean any tax, duty, levy, impost, assessment or other
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governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" is defined to mean 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, with respect to any Person, all
assets, rights (contractual or otherwise) and properties, whether tangible or
intangible, used or intended for use in connection with a Telecommunications
Business; provided that such assets are accounted for as "property, plant and
equipment" on the Company's consolidated balance sheet in accordance with GAAP.
"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) constructing, 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
clause (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.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939, as amended, as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Dollar Equivalent" means, with respect to any monetary
amount in a currency other than the United States dollar, at any time for the
determination thereof, the amount of United States dollars obtained by
converting such foreign currency involved in such computation into United States
dollars at the spot rate for the purchase of United States dollars with the
applicable foreign currency as quoted by Reuters at approximately 11:00 a.m.
(New York City time) on the date not more than two business days prior to such
determination. For purposes of determining whether any Indebtedness can be
Incurred (including Permitted Indebtedness), any Investment can be made and any
transaction described in Section 1011 can be undertaken (a "Tested
Transaction"), the United States Dollar Equivalent of such Indebtedness,
Investment or transaction described in Section 1011. 1011 shall be determined
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on the date Incurred, made or undertaken and no subsequent change in the United
States Dollar Equivalent shall cause such Tested Transaction to have been
incurred, made or undertaken in violation of this Indenture.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Board of Directors, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary so long as (i) neither the Company nor any other Subsidiary is
directly or indirectly liable for or provides credit support for or guarantees
any Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any other
Subsidiary to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity, (iii) any
Investment in such Subsidiary made as a result of designating such Subsidiary
an Unrestricted Subsidiary will not violate the provisions of Section 1017,
(iv) neither the Company nor any other Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Company and (v) neither the Company nor
any other Subsidiary has any obligation (1) to subscribe for additional shares
of Capital Stock or other equity interest in such Subsidiary or (2) to maintain
or preserve such Subsidiary's financial condition or to cause such Subsidiary
to achieve certain levels of operating results. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing a board
resolution with the Trustee giving effect to such designation. The Board of
Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary
if, immediately after giving effect to such designation, there would be no
Default or Event of Default under this Indenture and the Company could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 1008. In no event shall the Existing Subsidiaries be designated as
Unrestricted Subsidiaries.
"U.S. Global Note" has the meaning set forth in Section
201.
"U.S. Government Securities" means securities
that are (i) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America (x) the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America or (y)
that are rated at least "Aaa" (or the then equivalent grade) by ▇▇▇▇▇'▇ or
"AAA" (or the then equivalent grade) by S&P.
"U.S. Physical Notes" has the meaning set forth in
Section 201.
"Vice President", when used with respect to the Company or the
Trustee, means
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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" means, with respect to any Person, any class or
classes of Capital Stock pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person (irrespective of
whether or not, at the time, stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any contingency).
"Warrant Agreement" means the Warrant Agreement dated as of
February 23, 1998, by and between the Company and The Bank of New York, as
Warrant Agent.
"Wholly Owned" means, with respect to any Subsidiary, such Subsidiary
if all the outstanding Capital Stock of such Subsidiary (other than any
directors' qualifying shares) is owned directly by the Company or by the
Company and one or more Wholly Owned Restricted Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel to the effect that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of any such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 1007)
shall include:
(1) a statement to the effect that each individual or firm signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement to the effect that, in the opinion of each such
individual or such firm, he or she has or they have made such examination
or investigation as is
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necessary to enable him, her or them to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual or such firm, such covenant or condition has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Notes may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount at Maturity and serial numbers of Notes held by
any Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by or pursuant to Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Notes shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
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SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office, for the attention
of the Chief Financial Officer, specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of Notes
by the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at its address as
it appears in the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice
of any event to Holders when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be sufficient giving of such
notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Note shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Notes Registrar and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. Upon the effectiveness of
the Shelf Registration Statement or the consummation of the Exchange Offer,
this Indenture will be subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity or Maturity
of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of interest or principal (and premium, if any) need not be made at such Place
of Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity or Maturity; provided that no interest
shall accrue for the period from and after such Interest Payment Date, Stated
Maturity or Maturity, as the case may be.
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SECTION 113. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the provision required by the TIA shall control.
SECTION 114. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or this Indenture, as applicable, or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Notes.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "12 1/2% Senior Discount Notes due
2008" and the Exchange Notes shall be known as the "12 1/2% Series B Senior
Discount Notes due 2008", in each case of the Company. The Notes and the
Trustee's certificate of authentication shall be in substantially the forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing such Notes, as evidenced by
their execution of the Notes. Any portion of the text of any Note may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Note.
The definitive Notes shall be printed, typewritten, photocopied,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act may be issued in the form of one or more permanent global Notes
in substantially the form set forth in Exhibit A and contain each of the
legends set forth in Section 203 (the "U.S. Global Note"), deposited with the
Trustee, as custodian for the Depositary or its nominee, duly
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executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued in the form of a single
permanent global Note in substantially the form set forth in Exhibit A (the
"Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary or its nominee, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount at
Maturity of the Offshore Global Note may from time to time be increased or
decreased by adjustments made in the records of the Trustee, as custodian for
the Depositary or its nominee, as herein provided.
Initial Notes issued pursuant to Section 305 in exchange for or upon
transfer of beneficial interests in the U.S. Global Note or the Offshore Global
Note may be in the form of either (i) permanent certificated Notes containing
the Private Placement Legend as set forth in Section 203 (the "U.S. Physical
Notes") or (ii) permanent certificated Notes (the "Offshore Physical Notes")
containing the Private Placement Legend as set forth in Section 203 until such
time as the conditions set forth in Section 203 are satisfied, respectively, in
either case in substantially the form set forth in Exhibit A, as provided in
Section 312.
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes".
Exchange Notes shall be issued in substantially the form set forth in
Exhibit A.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
Trustee
Dated: __________________ By Authorized Signatory
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SECTION 203. Restrictive Legends.
Unless and until (i) an Initial Note is sold pursuant to an effective Shelf
Registration Statement or (ii) an Initial Note is exchanged for an Exchange Note
in an Exchange Offer pursuant to an effective Exchange Offer Registration
Statement, in each case pursuant to the Notes Registration Rights Agreement, (A)
each U.S. Global Note and U.S. Physical Note shall bear the following legend set
forth below (the "Private Placement Legend") on the face thereof and (B) the
Offshore Global Note shall bear the Private Placement Legend on the face thereof
until (x) at least 41 days after the Issue Date (the "Offshore Note Exchange
Date") and (y) receipt by the Company and the Trustee of a certificate
substantially in the form provided in Section 204:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S, (2) AGREES
THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SHORTER
PERIOD AS MAY BE PRESCRIBED BY RULE 144(K) (OR ANY SUCCESSOR PROVISION
THEREOF) UNDER THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE ISSUER OR ITS SUBSIDIARY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-
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U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THESE SECURITIES
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
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SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period.
On or after April 4, 1998
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: DTI HOLDINGS, INC. (the "Company") 12 1/2% Senior Discount Notes
due 2008 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount at Maturity of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 203 of the Indenture dated as of February 23, 1998
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended ("Regulation S"). Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount at Maturity of Notes represented
by the Offshore Global Note, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of ▇▇▇▇▇▇]
By:
Authorized Signature
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ARTICLE THREE
THE NOTES
SECTION 301. Amount.
The aggregate principal amount at Maturity of Notes which may be
authenticated and delivered under this Indenture is limited to $506,000,000,
except for Notes authenticated and delivered upon registration or transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 311, 312, 906, 1014 or 1015 or pursuant to an Exchange Offer.
The Stated Maturity of the Notes shall be March 1, 2008, and they shall
accrete original issue discount at the rate of 12 1/2% per annum, compounded
semiannually, to an aggregate principal amount of $506,000,000 by March 1, 2003,
and shall bear cash interest at the rate of 12 1/2% per annum accruing from
March 1, 2003, or from the most recent Interest Payment Date to which cash
interest has been paid or duly provided for, payable initially on September 1,
2003 and semi-annually thereafter on March 1 and September 1 in each year, until
the principal amount at Maturity thereof is paid in full and to the Person in
whose name the Note (or any predecessor Note) is registered at the close of
business on the February 15 or August 15 immediately preceding such Interest
Payment Date (each, a "Regular Record Date"). Interest will be computed on the
Notes as specified in Section 310 hereof.
The Accreted Value or principal of (and premium, if any) and interest on
the Notes shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid (a) by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Note Register or (b) by wire transfer to an account maintained by the payee in
the United States.
Holders shall have the right to require the Company to purchase their
Notes, in whole or in part, in the event of a Change of Control pursuant to
Section 1014 and in the event of certain Asset Sales pursuant to Section 1015.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer or any Vice President. The signature of any of these
officers on the Notes may be the manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
On Company Order, the Trustee shall manually authenticate for original
issue Initial Notes in an aggregate principal amount at Maturity not to exceed
$506,000,000. On Company Order, the Trustee shall authenticate for original
issue Exchange Notes in an aggregate principal amount at Maturity not to exceed
$506,000,000; provided that such Exchange Notes shall be issuable only upon the
valid surrender for cancellation of Initial Notes of a like aggregate principal
amount at Maturity in accordance with an Exchange Offer pursuant to the Notes
Registration Rights Agreement. In each case, the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company that
it may reasonably request in connection with such authentication of Notes.
Such order shall specify the amount of Notes to be authenticated and the date
on which the original issue of Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate
of authentication substantially in the form provided for in Section 202, duly
executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated with
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person that shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to
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time, at the request of the successor Person, be exchanged for other Notes
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Notes surrendered for such exchange and of like principal amount at Maturity;
and the Trustee, upon Company Order of the successor Person, shall authenticate
and make available for delivery Notes as specified in such request for the
purpose of such exchange. If Notes shall at any time be authenticated and
delivered in any new name of a successor Person pursuant to this Section 303 in
exchange or substitution for or upon registration of transfer of any Notes,
such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute, and
upon Company Order the Trustee shall authenticate and make available for
delivery, temporary Notes which are printed, lithographed, typewritten,
photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes to
be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Company shall execute and,
upon Company Order, the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount at Maturity of definitive
Notes of authorized denominations. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for the Notes (the register maintained in the Corporate
Trust Office of the Trustee and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Note Register shall be in written form or any other
form capable of being converted into written form within a reasonable time. At
all reasonable times, the Note Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as note registrar (the
Trustee in such capacity, together with any successor Trustee in such capacity,
the "Note Registrar") for the purpose of registering Notes and transfers of
Notes as herein provided.
Upon surrender for registration of transfer of any Note at the office or
agency in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, in the name of the designated
transferee, one or more new Notes, of any authorized denominations and of a
like aggregate principal amount at Maturity and tenor.
At the option of the Holder, Notes may be exchanged for other Notes, of
any authorized denomination and of a like aggregate principal amount at
Maturity, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and make available for delivery, the Notes
which the Holder making the exchange is entitled to receive; provided that no
exchange of Initial Notes for Exchange Notes shall occur until an Exchange
Offer Registration Statement shall have been declared effective by the
Commission, the Trustee shall have received an Officers' Certificate confirming
that the Exchange Offer Registration Statement has been declared effective by
the Commission and the Initial Notes to be exchanged for the Exchange Notes
shall have been cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Note Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other
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governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 304,
906, 1014 or 1015 not involving any transfer.
The Company shall not be required to issue, register the transfer of or
exchange any Note which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Note not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute, and the Trustee shall authenticate and make available for delivery in
exchange therefor, a new Note of like tenor and principal amount at Maturity
and bearing a number not contemporaneously outstanding, or, in case any such
mutilated Note has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Note, a new Note of like tenor and principal amount at Maturity
and bearing a number not contemporaneously outstanding, or, in case any such
destroyed, lost or stolen Note has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Note, pay
such Note.
Upon the issuance of any new Note under this Section 306, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes duly issued hereunder.
The provisions of this Section 306 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 Notes.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the Place of Payment;
provided, however, that each installment of interest on any Note may at the
Company's option be paid (i) by mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Note Register or (ii)
by wire transfer to an account located in the United States maintained by the
payee.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Notes (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be given in the manner provided in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
so given, such Defaulted Interest shall be paid to the Persons in whose
name the Registered Notes (or their respective Predecessor Notes) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 307 and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any, on) and
(subject to Sections 305 and 307) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, repayment at the option of the Holder,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Notes so delivered to the
Trustee shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation, any Notes previously authenticated hereunder
which the Company has not issued and sold, and all Notes so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures unless by Company Order the Company shall direct
that cancelled Notes be returned to it.
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SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the
Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a beneficial owner of any Note. The registered holder of a Global
Note may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 312. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as otherwise set forth in
Section 312 and (ii) U.S. Physical Notes or Offshore Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the U.S. Global Note or the Offshore Global Note, respectively, in the event
that the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the applicable Global Note or the Depositary ceases
to be a "Clearing Agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days. In connection with
a transfer of an entire Global Note to beneficial owners pursuant to clause
(ii) of this paragraph (b), the applicable Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the applicable
Global Note, an equal aggregate principal amount at Maturity of U.S. Physical
Notes (in the case of the U.S. Global Note) or Offshore Physical Notes (in the
case of the Offshore Global Note), as the case may be, of authorized
denominations.
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(c) Any beneficial interest in one of the Global Notes that is transferred
to a person who takes delivery in the form of an interest in the other Global
Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in the other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b) of this Section shall, unless such
exchange is made on or after (i) an Initial Note is sold pursuant to an
effective Shelf Registration Statement, pursuant to the Notes Registration
Rights Agreement, (ii) an Initial Note is exchanged for an Exchange Note in an
Exchange Offer pursuant to an effective Exchange Offer Registration Statement,
pursuant to the Notes Registration Rights Agreement, or (iii) two years after
the later of the original issue date of the Initial Note and the last date on
which the Company or any affiliate of the Company was the owner of the Initial
Note, (the "Resale Restriction Termination Date"), and, except as otherwise
provided in Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Note is sold pursuant to an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in the Exchange Offer pursuant to an effective Registration Statement, in
each case, pursuant to the Notes Registration Rights Agreement, the following
provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to all
transfers involving any Physical Note and any beneficial interest in any Global
Note.
(b) Certain Definitions. As used in this Section 312 only, "delivery" of
a certificate by a transferee or transferor means the delivery to the Note
Registrar by such transferee or transferor of the applicable certificate duly
completed; "holding" includes both possession of a Physical Note and ownership
of a beneficial interest in a Global Note, as the context requires;
"transferring" a Global Note means transferring that portion of the principal
amount at Maturity of the transferor's beneficial interest therein that the
transferor has notified the Note Registrar that it has agreed to transfer; and
"transferring" a Physical Note means transferring that portion of the principal
amount at Maturity thereof that the transferor has notified the Note Registrar
that it has agreed to transfer.
As used in this Indenture, "Regulation S Certificate" means a certificate
substantially in the form set forth in Section 314; "Rule 144A Certificate"
means a certificate substantially in the form set forth in Section 315; and
"Non-Registration Opinion and Supporting Evidence" means a written opinion of
counsel reasonably acceptable to the Company to the effect that, and such other
certification or information as the Company may
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reasonably require to confirm that, the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) Deemed Delivery of a Rule 144A Certificate in Certain Circumstances. A
Rule 144A Certificate, if not actually delivered, will be deemed delivered if
(i) (A) the transferor advises the Company and the Trustee in writing that the
relevant offer and sale were made in accordance with the provisions of Rule
144A (or, in the case of a transfer of a Physical Note, the transferor checks
the box provided on the Physical Note to that effect) and (B) the transferee
advises the Company and the Trustee in writing that (x) it and, if applicable,
each account for which it is acting in connection with the relevant transfer,
is a QIB within the meaning of Rule 144A, (y) it is aware that the transfer of
Notes to it is being made in reliance on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z) prior to the
proposed date of transfer it has been given the opportunity to obtain from the
Company the information referred to in Rule 144A(d)(4), and has either declined
such opportunity or has received such information (or, in the case of a
transfer of a Physical Note, the transferee signs the certification provided on
the Physical Note to that effect); or (ii) the transferor holds the U.S. Global
Note and is transferring to a transferee that will take delivery in the form of
the U.S. Global Note.
(e) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Note Exchange
Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note,
then the Note Registrar shall (x) register such transfer in the
name of such transferee and record the date thereof in its books
and records, (y) cancel such surrendered U.S. Physical Note and (z)
deliver a new U.S. Physical Note to such transferee duly registered
in the name of such transferee in principal amount at Maturity
equal to the principal amount at Maturity being transferred of such
surrendered U.S. Physical Note;
(ii) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
U.S. Global Note, then the Note Registrar shall
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(x) cancel such surrendered U.S. Physical Note, (y) record an
increase in the principal amount at Maturity of the U.S. Global
Note equal to the principal amount at Maturity being transferred of
such surrendered U.S. Physical Note and (z) notify the Depositary
in accordance with the procedures of the Depositary that it
approves of such transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the Note Registrar shall (x) cancel such
surrendered U.S. Physical Note, (y) record an increase in
the principal amount at Maturity of the Offshore Global Note equal
to the principal amount at Maturity being transferred of such
surrendered U.S. Physical Note and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves
of such transfer; provided, however, that until the Offshore Note
Exchange Date occurs, beneficial interests in the Offshore Global
Note 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.
In any of the cases described in this Section 312(e)(1)(A), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount at Maturity equal to the principal amount at Maturity
not being transferred of such surrendered U.S. Physical Note, as
applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note,
then the Note Registrar shall (w) register such transfer in the
name of such transferee and record the date thereof in its books
and records, (x) record a decrease in the principal amount at
Maturity of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
U.S. Physical Note to such transferee duly registered in the name
of such transferee in principal amount at Maturity equal to the
amount of such decrease and (z) notify the Depositary in accordance
with the procedures of the Depositary that it approves of such
transfer;
(ii) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a
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beneficial interest in the U.S. Global Note, then the transfer
shall be effected in accordance with the procedures of the
Depositary therefor; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the Note Registrar shall (w) register
such transfer in the name of such transferee and record the date
thereof in its books and records, (x) record a decrease in the
principal amount at Maturity of the U.S. Global Note in an amount
equal to the beneficial interest therein being transferred, (y)
record an increase in the principal amount at Maturity of the
Offshore Global Note equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer; provided, however,
that until the Offshore Note Exchange Date occurs, beneficial
interests in the Offshore Global Note 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.
(C) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note,
then the Note Registrar shall (w) register such transfer in the
name of such transferee and record the date thereof in its books
and records, (x) record a decrease in the principal amount at
Maturity of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
U.S. Physical Note to such transferee duly registered in the name
of such transferee in principal amount at Maturity equal to the
amount of such decrease and (z) notify the Depositary in accordance
with the procedures of the Depositary that it approves of such
transfer;
(ii) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
U.S. Global Note, then the Note Registrar shall (x) record a
decrease in the principal amount at Maturity of the Offshore Global
Note in an amount equal to the beneficial interest therein being
transferred, (y) record an increase in the principal amount at
Maturity of the U.S. Global Note equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
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transfer; or
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the transfer shall be effected in
accordance with the procedures of the Depositary therefor;
provided, however, that until the Offshore Note Exchange Date
occurs, beneficial interests in the Offshore Global Note 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.
2. If the proposed transfer occurs on or after the Offshore Note Exchange
Date and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Note Registrar,
and the proposed transferee or transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note,
then the procedures set forth in Section 312(e)(1)(A)(i) shall
apply;
(ii) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
U.S. Global Note, then the procedures set forth in Section
312(e)(1)(A)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall cancel such surrendered U.S. Physical Note and at
the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Note to such transferee
in principal amount at Maturity equal to the principal amount
at Maturity being transferred of such surrendered U.S.
Physical Note, or
(y) if the proposed transferee is or is acting through
an Agent Member, record an increase in the principal amount
of the Offshore Global Note equal to the principal amount at
Maturity being transferred
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of such surrendered U.S. Physical Note and notify the
Depositary in accordance with the procedures of the
Depositary that it approves of such transfer.
In any of the cases described in this Section 312(e)(2)(A), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount at Maturity equal to the principal amount at Maturity
not being transferred of such surrendered U.S. Physical Note, as
applicable.
(B) the U.S. Global Note, and the proposed transferee or transferor,
as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee requests delivery in the form of a U.S. Physical Note,
then the procedures set forth in Section 312(e)(1)(B)(i) shall
apply; or
(ii) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
U.S. Global Note, then the procedures set forth in Section
312(e)(1)(B)(ii) shall apply; or
(iii) delivers a Regulation S Certificate, then the Note
Registrar shall (x) record a decrease in the principal amount at
Maturity of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) notify the
Depositary in accordance with the procedures of the Depositary that
it approves of such transfer and (z) at the direction of the
transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Note to such transferee
in principal amount at Maturity equal to the amount of such
decrease in the principal amount at Maturity of the U.S.
Global Note, or
(y) if the proposed transferee is or is acting through
an Agent Member, record an increase in the principal amount
at Maturity of the Offshore Global Note equal to the amount
of such decrease in the principal amount at Maturity of the
U.S. Global Note.
(C) an Offshore Physical Note which is surrendered to the Note
Registrar, and the proposed transferee or transferor, as applicable:
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(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Note, then the Note
Registrar shall (x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount at Maturity of the
U.S. Global Note equal to the principal amount at Maturity being
transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the Note
Registrar shall (x) cancel such surrendered Offshore Physical Note,
(y) record an increase in the principal amount at Maturity of the
Offshore Global Note equal to the principal amount at Maturity
being transferred of such surrendered Offshore Physical Note and
(z) notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer; or
(iii) does not make a request covered by Section
312(e)(2)(C)(i) or Section 312(e)(2)(C)(ii), then the Note
Registrar shall (x) register such transfer in the name of such
transferee and record the date thereof in its books and records,
(y) cancel such surrendered Offshore Physical Note and (z) deliver
a new Offshore Physical Note to such transferee duly registered in
the name of such transferee in principal amount at Maturity equal
to the principal amount at Maturity being transferred of such
surrendered Offshore Physical Note.
In any of the cases described in this Section 312(e)(2)(C), the Note
Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal at Maturity to the principal amount at Maturity
not being transferred of such surrendered U.S. Physical Note, as
applicable.
(D) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed
transferee is or is acting through an Agent Member and requests
delivery in the form of the U.S. Global Note, then the Note
Registrar shall (x) record a decrease in the principal amount at
Maturity of the Offshore Global Note in an amount equal to the
beneficial interest therein being transferred, (y) record an
increase in the principal amount at Maturity of the U.S. Global
Note equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary
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that it approves of such transfer;
(ii) where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the transfer
shall be effected in accordance with the procedures of the
Depositary therefor; or
(iii) does not make a request covered by Section
312(e)(2)(D)(i) or Section 312(e)(2)(D)(ii), then the Note
Registrar shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and records,
(x) record a decrease in the principal amount of the Offshore
Global Note in an amount equal to the beneficial interest therein
being transferred, (y) deliver a new Offshore Physical Note to such
transferee duly registered in the name of such transferee in
principal amount at Maturity equal to the amount of such decrease
and (z) notify the Depositary in accordance with the procedures of
the Depositary that it approves of such transfer.
(f) Execution, Authentication and Delivery of Physical Notes. In any case
in which the Note Registrar is required to deliver a Physical Note to a
transferee or transferor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(g) Certain Additional Terms Applicable to Physical Notes. Any transferee
entitled to receive a Physical Note may request that the principal amount at
Maturity thereof be evidenced by one or more Physical Notes in any authorized
denomination or denominations and the Note Registrar shall comply with such
request if all other transfer restrictions are satisfied.
(h) Transfers Not Covered by Section 312(e). The Note Registrar shall
effect and record, upon receipt of a written request from the Company so to do,
a transfer not otherwise permitted by Section 312(e), such recording to be done
in accordance with the otherwise applicable provisions of Section 312(e), upon
the furnishing by the proposed transferor or transferee of a Non-Registration
Opinion and Supporting Evidence.
(i) General. By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture. The
Note Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions with respect thereto set forth in this
Indenture. The Note Registrar shall not be required to determine (but may rely
upon a determination made by the Company) the sufficiency of any such
certifications, legal opinions or other information.
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(j) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Note Registrar shall
deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement
Legend, the Note Registrar shall deliver only Notes that bear the Private
Placement Legend unless (i) the circumstances exist contemplated by the fourth
paragraph of Section 201 (with respect to an Offshore Physical Note) or the
requested transfer is at least two years after the original issue date of the
Initial Note (with respect to any Physical Note), (ii) there is delivered to
the Note Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (iii) such Notes are exchanged for Exchange
Notes pursuant to an Exchange Offer.
SECTION 313. [Reserved].
SECTION 314. Form of Regulation S Certificate.
Regulation S Certificate
To: The Bank of New York,
Trustee (the "Trustee")
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: DTI Holdings, Inc. (the "Company")
12-1/2% Senior Discount Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate principal
amount at Maturity of Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S ("Regulation S") under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly, we
hereby certify as follows:
1. The offer of the Notes was not made to a person in the United
States (unless such person or the account held by it for which it is
acting is excluded from the definition of "U.S. person" pursuant to Rule
902(o) of Regulation S under the circumstances described in Rule
902(i)(3) of Regulation S) or specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer
was outside the United States or we and any person acting on our behalf
reasonably believed
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that the buyer was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated offshore
securities market, and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a buyer in the United
States.
3. Neither we, any of our affiliates, nor any person acting on our
or their behalf has made any directed selling efforts in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed
transfer takes place before the Offshore Note Exchange Date referred to
in the Indenture between the Company and the Trustee, or we are an
officer or director of the Company or a distributor, we certify that the
proposed transfer is being made in accordance with the provisions of
Rules 903 and 904(c) of Regulation S.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________
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SECTION 315. Form of Rule 144A Certificate.
Rule 144A Certificate
To: The Bank of New York,
Trustee (the "Trustee")
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:Corporate Trust Trustee Administration
Re: DTI Holdings, Inc. (the "Company")
12-1/2% Senior Discount Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate principal
amount at Maturity of Notes, we confirm that such sale has been effected
pursuant to and in accordance with Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended (the "Securities Act"). We are aware that the transfer
of Notes to us is being made in reliance on the exemption from the provisions
of Section 5 of the Securities Act provided by Rule 144A. Prior to the date of
this Certificate we have been given the opportunity to obtain from the Company
the information referred to in Rule 144A(d)(4), and have either declined such
opportunity or have received such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________
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SECTION 316. CUSIP Numbers.
The Company may use "CUSIP" numbers (if then generally in use) in issuing
the Notes and, if so, the Trustee shall use "CUSIP" numbers in notices to
Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
with respect to Notes (except as to any surviving rights of registration of
transfer or exchange of the Notes expressly provided for in this Indenture),
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all the respective Notes theretofore authenticated and
delivered (other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, and (ii) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
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and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire Indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation,
for Accreted Value of (and premium, if any) and interest to the
date of such deposit (in the case of Notes which have become due
and payable) or to the Stated Maturity or redemption date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of any interest on any Note when it
becomes due and payable and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note at its Maturity (upon acceleration, required purchase or
otherwise); or
(3) (A) default in the performance, or breach, of any covenant or
agreement of the Company contained in this Indenture (other than a default
in the performance, or breach, of a covenant or agreement which is
specifically dealt with in the immediately preceding clauses (1) and (2)
or in clauses (B), (C) or (D) of this clause (3) of this Section 501), and
continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount at Maturity of all Outstanding Notes a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
(B) default in the performance or breach of the provisions of Section
1015; (C) default in the performance or breach of Article Eight; or (D)
the failure to make or consummate a Change of Control Offer in accordance
with the provisions of Section 1014; or
(4) (A) one or more defaults in the payment of principal of (or
premium, if any, or interest on) Indebtedness of the Company or any
Significant Subsidiary aggregating $7,500,000 or more (or, to the extent
not denominated in United States dollars, the United States Dollar
Equivalent thereof), when the same becomes due and payable at the Stated
Maturity thereof, and such default or defaults shall have continued after
any applicable grace period and shall not have been cured or waived or (B)
Indebtedness of the Company or any Significant Subsidiary aggregating
$7,500,000 or more (or, to the extent not denominated in United States
dollars, the United States Dollar Equivalent thereof) shall have been
accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the Stated Maturity thereof; or
(5) one or more final judgments, orders or decrees of any court or
regulatory agency shall be rendered against the Company or any Significant
Subsidiary or their respective properties for the payment in money, either
individually or in an aggregate amount, in excess of $7,500,000 (or, to
the extent not denominated in United States dollars, the United States
Equivalent thereof) and either (A) an enforcement proceeding shall have
been commenced by any creditor upon such judgment or order or (B) there
shall have been a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect; or
(6) the entry of a decree or order by a court having jurisdiction in
the
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premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under a Bankruptcy Law or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or any Significant Subsidiary or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(7) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under a Bankruptcy Law or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of a general 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.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause
(6) or (7) of Section 501) shall occur and be continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount at Maturity of the Outstanding Notes, by written notice to the Company
(and to the Trustee if such notice is given by the Holders), may, and the
Trustee upon the written request of such Holders shall, declare the Accreted
Value of, premium, if any, and accrued interest on all of the Outstanding Notes
to be immediately due and payable, and upon any such declaration all such
amounts payable in respect of the Notes shall become immediately due and
payable. If an Event of Default described in clause (6) or (7) of Section 501
shall occur and be continuing, then the Accreted Value of, premium, if any, and
accrued interest on all the Outstanding Notes shall ipso facto become and
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made under this
Indenture, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount at Maturity of the
Outstanding Notes, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(i) all overdue interest on all Outstanding Notes,
(ii) the Accreted Value of and premium, if any, on any
Outstanding Notes that have become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal
and premium, if any, at the rate borne by the Notes,
(iii) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne
by the Notes, and
(iv) 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
(b) all Events of Default, other than the non-payment of amounts of
principal of, premium, if any, or interest on the Notes at the Maturity
thereof that have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Notes because of Event of Default specified in
Section 501(4) shall have occurred and be continuing, such Event of Default and
all consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be automatically annulled, waived and
rescinded if the Indebtedness that is the subject of such Event of Default
shall have been discharged or the holders thereof shall have rescinded their
declaration of acceleration in respect of such Indebtedness or the default that
is the basis for such Event of Default has been cured, and written notice of
such discharge or rescission or cure, as the case may be, shall have been given
to the Trustee by the Company and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders, within 30 days
after such declaration of acceleration in respect of the Notes, and no other
Event of Default shall have occurred during such 30-day period which has not
been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of
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30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for the Accreted Value of or principal (and premium, if any) and
interest, and interest on any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by such Notes, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal amount at Maturity of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of the Accreted Value or the overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of the Accreted
Value of, or the principal amount at Maturity (and premium, if any) and
interest owing and unpaid in respect of, the Notes and to file such other
papers or documents as may be
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necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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 Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of the Accreted Value or
principal (or premium, if any) or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for the
Accreted Value of or principal amount at Maturity of (and premium, if any,
on) and interest on the Notes in respect of which or for the benefit of
which such money has been
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collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for the Accreted Value or the
principal amount at Maturity (and premium, if any) and interest,
respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto, including the Company or any other obligor on the Notes, as their
interests may appear or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Note 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 shall have 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 at
Maturity of the Outstanding Notes shall have made a 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 shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount at Maturity of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Note 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 of such Holders or to enforce any right under this Indenture or any
Note, except in the manner herein provided and for the equal and ratable
benefit of all Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein, of the principal of (and premium, if any, on) and
(subject to Section 307) interest on, such Note on the respective Stated
Maturities expressed in such Note and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders of Notes shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Notes is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note 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 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount at
Maturity of the Outstanding Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided
that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 315 of the Trust Indenture Act, the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902 and the last paragraph of Section 502, the Holders
of not less than a majority in aggregate principal amount at Maturity of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
defaults hereunder and their consequences under this Indenture, except a
default
(1) in respect of the payment of the principal of (or premium, if
any, on) or interest on any Note at Maturity, 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 Note.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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SECTION 514. Waiver of Stay or Extension Laws.
Each of the Company and any other obligor on the Notes 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 Company and any other obligor on the Notes (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 SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within five days after the earlier of receipt from the Company of notice
of the occurrence of any Default or Event of Default hereunder or the date when
such Default or Event of Default becomes known to the Trustee, the Trustee
shall transmit, in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such Default
shall have been cured or waived; provided, however, that, except in the case of
a Default in the payment of the Accreted Value or the principal amount at
Maturity of (or premium, if any, on) or interest on any Note, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders; and provided
further that in the case of any Default of the character specified in Section
501(4) with respect to Notes, no such notice to Holders shall be given until at
least 45 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Notes pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
and
(9) 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
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the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except for the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and
that the statements made by it in its Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
SECTION 604. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Note Registrar or such other agent.
SECTION 605. Money Held in Trust.
All money received by the Trustee shall, until used or applied as herein
provided, be held in trust hereunder for the purposes for which they were
received. 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 in writing with the Company.
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SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee 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 each of the Trustee or any predecessor Trustee and
its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on)
or interest on particular Notes at Maturity.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation of the Trustee for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
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SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes by
Act of the Holders of not less than a majority in principal amount of the then
Outstanding Notes, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
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(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Note for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Notes
and the appointment of a successor Trustee or Trustees.
(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, with
respect to the Notes, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Notes shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the then Outstanding Notes delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Notes and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Notes shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Note 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 with respect to the Notes.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes to the Holders of Notes in the manner
provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
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SECTION 609. Acceptance of Appointment by Successor.
(a) Each successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in
paragraph (a) of this Section.
(c) 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 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect as
if such successor Trustee had itself authenticated such Notes. In case at that
time any of the Notes shall not have been authenticated, any successor Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this
Indenture; provided that the certificate of authentication the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
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SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to the Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes and the
Trustee shall give written notice of such appointment to all Holders of Notes
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Notes 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation 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 611, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 611, it
shall resign immediately in the manner and with the effect specified in this
Section 611.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section 611, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all
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Holders, in the manner provided for in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to time
such compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
Trustee
By
--------------------------
Authenticating Agent
By
--------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder, by receiving and holding the same, agrees with the Company
and the Trustee that none of the Company or the Trustee or any agent of either
of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
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SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the Issue Date, the Trustee shall transmit to the Holders (with a copy to
the Company at the Place of Payment), in the manner and to the extent provided
in TIA Section 313(c), a brief report dated as of such May 15 if required by
TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then the Company
shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially
all of its properties and assets substantially as an entirety to any other
Person or Persons or permit any Subsidiary to enter into any such transaction
or series of related transactions, if such transaction or series of related
transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and its Subsidiaries on a consolidated
basis substantially as an entirety to any Person or Persons, unless at the time
and immediately after giving effect thereto:
(i) either (a) the Company will be the continuing corporation or (b)
the Person (if other than the Company) formed by such consolidation or
into which the Company or such Subsidiary is merged or the Person which
acquires by sale, conveyance, transfer, lease or other disposition, all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis substantially as an entirety, as the
case may be (the "Surviving Entity"), (1) will be a corporation organized
and validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and (2) will expressly assume,
by a supplemental indenture to this Indenture in form satisfactory to the
Trustee, the Company's obligation pursuant to the Notes for the due and
punctual payment of the principal (including accretion of original issue
discount) of, premium, if any, on and interest on all the Notes and the
performance and observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(ii) immediately before and after giving effect to such transaction
or series of transactions on a pro forma basis (and treating any
obligation of the Company or any Subsidiary incurred in connection with or
as a result of such transaction or series of transactions as having been
incurred at the time of such transaction), no Default or Event of Default
shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction or series
of transactions on a pro forma basis (on the assumption that the
transaction or series of transactions occurred on the first day of the
latest fiscal quarter for which consolidated financial statements of the
Company are available immediately prior to the consummation of such
transaction or series of transactions with the appropriate adjustments
with respect to the transaction or series of transactions being included
in such pro forma calculation), the Company (or the Surviving Entity if
the Company is
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not the continuing obligor under this Indenture) could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under
the provisions of Section 1008; and
(iv) if any of the property or assets of the Company or any of its
Subsidiaries would thereupon become subject to any Lien, the provisions of
Section 1012 are complied with.
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, the Company or the Surviving
Entity shall have delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, and if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with the requirements of this Indenture and that all
conditions precedent therein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties
and assets of the Company in accordance with Section 801 in which the Company
is not the continuing obligor under this Indenture, the Surviving Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor had
been named as the Company therein. When a successor assumes all the obligations
of its predecessor under this Indenture, the predecessor shall be released from
those obligations; provided that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal (including
accretion of original issue discount) of, premium, if any, and interest on the
Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized pursuant
to 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 Company or
any
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other obligor on the Notes, and the assumption by any such successor of
the covenants of the Company or such obligor contained herein and in the
Notes in accordance with Article Eight; or
(2) to add to the covenants of the Company or any other obligor on
the Notes for the benefit of the Holders or to surrender any right or
power conferred upon the Company or any other obligor on the Notes, herein
and in the Notes, as applicable, in the Indenture or the Notes; or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in the Notes which may be defective or inconsistent with any
other provision herein or in the Notes, or to make any other provisions
with respect to matters or questions arising under this Indenture or the
Notes; provided that, in each case, such provisions shall not adversely
affect the interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification, if any, of this Indenture under the
Trust Indenture Act; or
(5) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(6) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Company's obligations under this
Indenture, in any property or assets, including any of which are required
to be mortgaged, pledged or hypothecated, or in which a security interest
is required to be granted, to the Trustee pursuant to this Indenture or
otherwise.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount at Maturity of all then Outstanding Notes that are affected
thereby, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to 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 of Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the Accreted Value thereof
or premium, if any, or the rate of interest thereon, or alter any
redemption provision with respect to the timing or amount of payment
thereof, or change the coin or currency in which the Accreted
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Value of any Note or any premium, if any, or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the redemption date), or
(2) amend, change or modify any of the provisions of Section 1014 or
Section 1015 including, in each case, amending, changing or modifying any
definitions relating thereto, or
(3) reduce the percentage in principal amount at Maturity of the
Outstanding Notes, 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
(4) modify any provisions of this Section, Section 1021 or Section
513, except to increase the percentage in principal amount at Maturity of
the Outstanding Notes required to take any of the actions described
therein or to provide that certain additional provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company of their respective rights or
obligations under this Indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an 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.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Notes
so modified as to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of Notes
that it will duly and punctually pay the principal of (and premium, if any, on)
and interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the City of New York an office or agency
where Notes may be presented or surrendered for payment (the "Place of
Payment"), where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company hereby designates the
Corporate Trust Office as the Place of Payment.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of the Place of Payment. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in accordance with
the requirements set forth above for Notes for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
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SECTION 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to the Notes, it will, on or before each date on which payment shall become due
of the Accreted Value of or principal amount at Maturity of (and premium, if
any) or interest on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the Accreted
Value or the principal amount at Maturity (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 of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the Notes,
it will, prior to or on each date on which payment shall become due of the
Accreted Value of or principal amount at Maturity of (and premium, if any, on)
or interest on any Notes, deposit with a Paying Agent a sum sufficient to pay
the Accreted Value or principal amount at Maturity (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 Accreted Value, principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the Accreted Value of
or the principal amount at Maturity of (and premium, if any) and interest
on the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of Accreted
Value of or principal amount at Maturity of (or premium, if any) or
interest on the Notes; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying
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Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the Accreted Value of or principal of
(and premium, if any) or interest on any Note and remaining unclaimed for one
year after such Accreted Value or such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and
each Restricted Subsidiary; provided, however, that, subject to the other
provisions of this Indenture, the Company shall not be required to preserve any
such right or franchise, or the existence of any Restricted Subsidiary, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries as
a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, would by
law become a lien (other than a Permitted Lien) upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
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SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the Company or any
Restricted Subsidiary or used or held for use in the conduct of its business or
the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (except ordinary wear and tear) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any material
respect to the Holders.
SECTION 1007. Statement by Officers As to Default.
(a) The Company will deliver to the Trustee, within 50 days after the end
of each fiscal quarter and within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture since the beginning of such quarter or such year, as the case
may be. For purposes of this Section 1007(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this Indenture,
or if the trustee for or the holder of any other evidence of Indebtedness of
the Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $7,500,000), the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
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SECTION 1008. Limitation on Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary to,
incur any Indebtedness (including any Acquired Indebtedness) other than
Permitted Indebtedness; provided that the Company may Incur Indebtedness if and
at the time of such incurrence (i) the Consolidated Indebtedness to
Consolidated Operating Cash Flow Ratio would have been less than or equal to
5.5 to 1.0, for Indebtedness incurred on or prior to December 31, 2000, or less
than or equal to 5.0 to 1.0, for Indebtedness incurred thereafter and (ii) no
Default or Event of Default shall have occurred and be continuing or occur as a
consequence of the actions set forth in this covenant.
In making the foregoing calculation, (A) pro forma effect will be given
to: (i) the incurrence or repayment of any Indebtedness to be incurred or
repaid on the date of the incurrence of such Indebtedness and (ii) the
acquisition (whether by purchase, merger or otherwise) or disposition (whether
by sale, merger or otherwise) of any company, entity or business acquired or
disposed of by the Company or its Restricted Subsidiaries, as the case may be,
since the beginning of the Four Quarter Period (as defined under the
"Consolidated Indebtedness to Consolidated Operating Cash Flow Ratio"
definition in Section 101) through the date of the incurrence of such
Indebtedness (the "Reference Period"), as if it had occurred on the first day
of such Reference Period and (B) the aggregate amount of Indebtedness
outstanding as of the end of the Reference Period will be deemed to include an
amount of funds equal to the average daily balance of Indebtedness outstanding
during the Reference Period under any revolving credit or similar facilities of
the Company and its Restricted Subsidiaries.
For the purposes of determining compliance with this Section 1008, in the
event that an item of Indebtedness or any portion thereof meets the criteria of
more than one of the types of Indebtedness the Company and the Restricted
Subsidiaries are permitted to incur, the Company will have the right, in its
sole discretion, to classify such item of Indebtedness or portion thereof at
the time of its incurrence and will only be required to include the amount and
type of such Indebtedness or portion thereof under the clause permitting the
Indebtedness as so classified.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, take any of the following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of its Capital Stock (other than dividends or
distributions payable solely in shares of its Qualified Capital Stock or
in options, warrants or other rights to acquire such shares of Qualified
Capital Stock);
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(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of its Capital Stock or any Capital
Stock of any of its Affiliates (other than Capital Stock of any Wholly
Owned Restricted Subsidiary) or any options, warrants or other rights to
acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Indebtedness;
(iv) make any Investment (other than any Permitted Investment); or
(v) declare or pay any dividend or distribution on any Capital Stock
of any Restricted Subsidiary to any Person (other than any of its Wholly
Owned Restricted Subsidiaries) other than pro rata dividends or
distributions on a class of Voting Stock of any Restricted Subsidiary, the
majority of which is owned by the Company or a Wholly Owned Restricted
Subsidiary; provided that no Restricted Subsidiary shall declare or pay
such pro rata dividends or distributions on its Voting Stock to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary) at a time
when it has outstanding Indebtedness owed to the Company or another
Restricted Subsidiary;
(such payments or other actions described in (but not excluded from) clauses
(i) through (v) are collectively referred to as "Restricted Payments"), unless
at the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution), (1) no Default or Event of Default shall
have occurred and be continuing, (2) the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
1008, and (3) the aggregate amount of all Restricted Payments declared or made
after the date of this Indenture shall not exceed the sum of:
(A) the remainder of (x) cumulative Consolidated Operating Cash Flow
of the Company during the period (taken as a single accounting period)
beginning on the first day of the fiscal quarter of the Company beginning
after the date of this Indenture and ending on the last day of the last
full fiscal quarter immediately preceding the date of such Restricted
Payment for which quarterly or annual consolidated financial statements of
the Company are available minus (y) the product of 1.5 times cumulative
Consolidated Interest Expense of the Company during such period; plus
(B) the aggregate Net Cash Proceeds and fair market value of
Telecommunications Assets or Voting Stock of a Person that becomes a
Restricted Subsidiary the assets of which consist primarily of
Telecommunications Assets received
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by the Company after the date of this Indenture as capital contributions
or from the issuance or sale (other than to any Subsidiary) of shares of
Qualified Capital Stock of the Company (including upon the exercise of
options, warrants or rights) or warrants, options or rights to purchase
shares of Qualified Capital Stock of the Company; plus
(C) the aggregate Net Cash Proceeds and fair market value of
Telecommunications Assets or Voting Stock of a Person that becomes a
Restricted Subsidiary the assets of which consist primarily of
Telecommunications Assets received by the Company after the date of this
Indenture from the issuance or sale (other than to any Subsidiary) of debt
securities or Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock of the Company, together with the
aggregate Net Cash Proceeds and fair market value of Telecommunications
Assets or Voting Stock of a Person that becomes a Restricted Subsidiary
the assets of which consist primarily of Telecommunications Assets
received by the Company at the time of such conversion or exchange; plus
(D) to the extent not otherwise included in the Consolidated
Operating Cash Flow of the Company, an amount equal to the sum of (i) the
net reduction in Investments in any Person (other than Permitted
Investments) resulting from the payment in cash of dividends, repayments
of loans or advances or other transfers of assets, in each case to the
Company or any Restricted Subsidiary after the date of this Indenture from
such Person and (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
any Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; provided, however, that in the case of
(i) or (ii) above the foregoing sum shall not exceed the amount of
Investments previously made (and treated as a Restricted Payment) by the
Company or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
(b) Notwithstanding paragraph (a) above, the Company and any Restricted
Subsidiary may take the following actions so long as (with respect to clauses
(ii), (iii), (iv) and (v) below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such dividend would
have complied with the provisions of paragraph (a) above and such payment
will be deemed to have been paid on such date of declaration for purposes
of the calculation required by paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company, in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of, shares of Qualified
Capital Stock of the Company;
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(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of shares of, Qualified
Capital Stock of the Company;
(iv) the purchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount thereof in the event
of a Change of Control in accordance with provisions similar to Section
1014; provided that prior to such purchase the Company has made the Change
of Control Offer as provided in such covenant with respect to the Notes
and has purchased all Notes validly tendered for payment in connection
with such Change of Control Offer;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or out
of the Net Cash Proceeds of a substantially concurrent incurrence (other
than to a Subsidiary) of, new Subordinated Indebtedness so long as (A) the
principal amount of such new Subordinated Indebtedness does not exceed the
principal amount (or, if such Subordinated Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, such lesser amount
as of the date of determination) of the Subordinated Indebtedness being so
purchased, redeemed, defeased, acquired or retired, plus the amount of any
premium required to be paid in connection with such refinancing pursuant
to the terms of such Subordinated Indebtedness being refinanced or the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus, in either case, the amount of expenses
of the Company incurred in connection with such refinancing; (B) such new
Subordinated Indebtedness is subordinated to the Notes to the same extent
as such Subordinated Indebtedness so purchased, redeemed, defeased,
acquired or retired; and (C) such new Subordinated Indebtedness has an
Average Life longer than the Average Life of the Notes and a final Stated
Maturity of principal later than the final Stated Maturity of principal of
the Notes; and
(vi) the payment of cash in lieu of fractional shares of Common Stock
pursuant to the Warrant Agreement.
The actions described in clauses (i), (ii), (iii), (iv) and (vi) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) but shall reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph
(a), and the actions described in clause (v) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (b) and shall not reduce the amount that would otherwise be available
for Restricted Payments under clause (3) of paragraph (a) above.
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SECTION 1010. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to,
issue or sell any Capital Stock of a Restricted Subsidiary (other than to the
Company or a Wholly Owned Restricted Subsidiary) except that the provisions of
this Section 1010 shall not prohibit (i) the ownership by directors of
director's qualifying shares or the ownership by foreign nationals of shares of
Capital Stock of any Restricted Subsidiary, to the extent mandated by
applicable law; (ii) issuances or sales of Capital Stock if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer be a Restricted Subsidiary and any Investment in such Person remaining
after giving effect to such issuance or sale would have been permitted to be
made under Section 1009 if made on the date of such issuance and sale; or (iii)
the issuance and sale of all, but not less than all, of the issued and
outstanding Capital Stock of any Restricted Subsidiary owned by the Company and
the Restricted Subsidiaries in compliance with Section 1015.
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SECTION 1011. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into or suffer to exist, directly or indirectly, any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any Restricted Subsidiary unless
(i) such transaction or series of related transactions are on terms that are no
less favorable to the Company or such Restricted Subsidiary, as the case may
be, than those that could have been obtained in an arm's length transaction
with unrelated third parties who are not Affiliates, (ii) with respect to any
transaction or series of related transactions involving aggregate consideration
equal to or greater than $5,000,000 (or, to the extent not denominated in
United States dollars, the United States Dollar Equivalent thereof), the
Company will deliver an Officers' Certificate to the Trustee certifying that
such transaction or series of related transactions complies with clause (i)
above and (iii) with respect to any transaction or series of related
transactions involving aggregate consideration in excess of $10,000,000 (or, to
the extent not denominated in United States dollars, the United States Dollar
Equivalent thereof), the Company shall deliver the Officers' Certificate
described in clause (ii) above which shall also certify that such transaction
or series of related transactions has been approved by a majority of the
Disinterested Directors on the Board of Directors, or that the Company has
obtained a written opinion from a nationally recognized U.S. investment banking
firm certifying that such transaction or series of related transactions is fair
to the Company or such Restricted Subsidiary, as the case may be, from a
financial point of view; provided, however, that this provision will not
restrict (1) any transaction or series of related transactions among the
Company and Wholly Owned Restricted Subsidiaries or among Wholly Owned
Restricted Subsidiaries, (2) Investments in Qualified Capital Stock of the
Company by any Person, including an Affiliate of the Company, (3) the Company
from paying reasonable and customary regular compensation and fees to directors
of the Company or any Restricted Subsidiary who are not employees of the
Company or any Restricted Subsidiary, (4) the making of any Restricted Payment
not prohibited by Section 1009 or (5) any transaction or series of transactions
in an aggregate amount of up to $1,500,000.
SECTION 1012. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than Permitted Liens) on or with respect to any of its property or
assets, including any shares of stock or Indebtedness of any Restricted
Subsidiary, whether owned on the Issue Date or thereafter acquired, or any
income, profits or proceeds therefrom, or assign or otherwise convey any right
to receive income thereon, unless (x) in the case of any Lien securing
Subordinated Indebtedness, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien and (y) in the case
of any other Lien, the Notes are equally and ratably secured with the
obligation or liability secured by such ▇▇▇▇.
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SECTION 1013. Limitations on Issuances of Guarantees of Indebtedness by
Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable with
respect to any Indebtedness of the Company (the "Guaranteed Indebtedness")
unless (i) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for the guarantee (a "Subsidiary Guarantee")
of payment of the Notes by such Restricted Subsidiary; provided that this
paragraph (a) shall not be applicable to (x) any guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not incurred in connection with or in contemplation of such Person
becoming a Restricted Subsidiary or (y) any guarantee of any Restricted
Subsidiary of Indebtedness incurred pursuant to clause (j) under the "Permitted
Indebtedness" definition. If the Guaranteed Indebtedness is (A) pari passu in
right of payment with the Notes, then the guarantee of such Guaranteed
Indebtedness shall be pari passu in right of payment with, or subordinated in
right of payment to, the Subsidiary Guarantee or (B) subordinated in right of
payment to the Notes, then the guarantee of such Guaranteed Indebtedness shall
be subordinated in right of payment to the Subsidiary Guarantee at least to the
extent that the Guaranteed Indebtedness is subordinated in right of payment to
the Notes.
(b) Notwithstanding the foregoing, any Subsidiary Guarantee created
pursuant to the provisions described in the foregoing paragraph (a) shall
provide by its terms that it shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any Person
who is not an Affiliate of the Company, of all of the Company's Capital Stock
in, or all or substantially all the assets of, such Restricted Subsidiary
(which sale, exchange or transfer is not prohibited by this Indenture) or (ii)
the release by the holders of the Indebtedness of the Company described in the
preceding paragraph of their guarantee by such Restricted Subsidiary (including
any deemed release upon payment in full of all obligations under such
Indebtedness, except by or as a result of payment under such guarantee), at a
time when (A) no other Indebtedness of the Company has been guaranteed by such
Restricted Subsidiary or (B) the holders of all such other Indebtedness which
is guaranteed by such Restricted Subsidiary also release their guarantee by
such Restricted Subsidiary (including any deemed released upon payment in full
of all obligations under such Indebtedness).
SECTION 1014. Purchase of Notes upon a Change of Control.
(a) If a Change in Control shall occur at any time, then each Holder of
Notes shall have the right to require that the Company purchase, and the
Company shall make an offer to purchase, from such Holder all of its Notes, in
whole or in part and in integral multiples of $1,000, at a purchase price (the
"Change in Control Purchase Price") in cash in an amount equal to (i) 101% of
the Accreted Value thereof as of the date of purchase (the "Change in Control
Purchase Date") if such date is on or before March 1, 2003, and (ii) 101%
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of the principal amount at Maturity of the Notes, plus accrued and unpaid cash
interest, if any, to the Change in Control Purchase Date if such date is after
March 1, 2003, pursuant to the offer described in this Section 1014 (the
"Change in Control Offer") and the other procedures set forth in this
Indenture.
(b) Within 15 days following any Change in Control, the Company shall
notify the Trustee thereof and give written notice of such Change in Control
Offer to each Holder by first-class mail, postage prepaid, at the address of
such Holder appearing in the Note Register, stating, among other things, (i)
the Change in Control Purchase Price and the Change in Control Purchase Date,
which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act or any applicable securities
laws or regulations; (ii) that any Note not tendered will continue to accrete
original issue discount and/or accrue interest, as the case may be; (iii) that,
unless the Company defaults in the payment of the Change in Control Purchase
Price, any Notes accepted for payment pursuant to the Change in Control Offer
shall cease to accrete original issue discount and/or accrue interest, as the
case may be, after the Change in Control Purchase Date; (iv) that Holders
electing to have any Notes purchased pursuant to a Change in Control Offer
shall be required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day preceding the Change in Control Purchase Date; (v) that
Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change in Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have such Notes purchased; (vi) that Holders whose
Notes are being purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof; (vii) the instructions that the Holders must follow in order
to tender their Notes; and (viii) the circumstances and relevant facts
regarding such Change in Control.
(c) The Company shall comply to the extent applicable with the
requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection
with a Change in Control Offer.
(d) The Company will not, and will not permit any Subsidiary to, create or
permit to exist or become effective any restriction (other than restrictions
existing under Indebtedness as in effect on the date of this Indenture) that
would materially impair the ability of the Company to make a Change in Control
Offer to purchase the Notes or, if such Change in Control Offer is made, to pay
for the Notes tendered for purchase.
SECTION 1015. Limitation on Sale of Assets.
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(a) The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, engage in any Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the shares or assets sold
(as determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) and (ii) the consideration
received by the Company or the relevant Restricted Subsidiary in respect of
such Asset Sale consists of at least 75% cash or Cash Equivalents.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company may use the Net Cash Proceeds thereof, within 12 months after such
Asset Sale, to (i) permanently repay or prepay any then outstanding senior
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary or
(ii) invest (or enter into a legally binding agreement to invest) in properties
and assets to replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
the Company or a Restricted Subsidiary, as the case may be, existing on the
Issue Date. If any such legally binding agreement to invest such Net Cash
Proceeds is terminated, then the Company may, within 60 days of such
termination or within 12 months of such Asset Sale, whichever is later, apply
or invest such Net Cash Proceeds as provided in clause (i) or (ii) (without
regard to the parenthetical contained in such clause (ii)) above. The amount of
such Net Cash Proceeds not so used as set forth above in this paragraph (b)
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000 (or,
to the extent not denominated in United States dollars, the United States
Dollar Equivalent thereof) the Company shall, within 15 business days, make an
offer to purchase (an "Excess Proceeds Offer") from all Holders, on a pro rata
basis, in accordance with the procedures set forth below, the maximum principal
amount at Maturity of Notes (expressed as a multiple of $1,000) that may be
purchased with the Excess Proceeds. The offer price (the "Excess Proceeds
Offer Price") as to each Note shall be payable in cash in an amount equal to
(a) 100% of the Accreted Value of the Note, if such purchase date is on or
before March 1, 2003, and (b) 100% of the principal amount at Maturity of such
Note, plus accrued and unpaid cash interest, if any, to the date of purchase,
if such purchase date is after March 1, 2003. To the extent that the aggregate
Excess Proceeds Offer Price of Notes tendered pursuant to an Excess Proceeds
Offer is less than the Excess Proceeds, the Company may use such deficiency for
general corporate purposes. If the aggregate Excess Proceeds Offer Price of
Notes validly tendered and not withdrawn by Holders thereof exceeds the Excess
Proceeds, Notes to be purchased will be selected on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset to zero.
(d) Whenever the Excess Proceeds received by the Company exceed
$10,000,000, such Excess Proceeds shall be set aside by the Company in a
separate account pending (i) deposit with the Trustee or a paying agent of the
amount required to purchase the
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Notes tendered in an Excess Proceeds Offer, (ii) delivery by the Company of the
Exceeds Proceeds Offer Price to the Holders tendered in an Excess Proceeds
Offer and (iii) application, as set forth above, of Excess Proceeds for any
lawful purposes. Such Excess Proceeds may be invested in Cash Equivalents;
provided that the maturity date of any investment shall not be later than the
date of the Excess Proceeds Offer. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Cash Equivalents.
(e) If the Company becomes obligated to make an Excess Proceeds Offer
pursuant to clause (c) above, the Notes shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the amount of Excess Proceeds is less
than the aggregate Excess Proceeds Offer Price of all Notes tendered.
(f) Within 15 days after the obligation of the Company to make an Excess
Proceeds Offer arises, the Company shall notify the Trustee of such obligation
and give written notice of such Excess Proceeds Offer to each Holder of Notes
by first-class mail, postage prepaid, at the address of such Holder appearing
in the Note Register, stating, (i) the Excess Proceeds Offer Price and the date
of the purchase of Notes pursuant to the Excess Proceeds Offer (the "Excess
Proceeds Offer Date"), which shall be a Business Day no earlier than 30 days
nor later than 60 days from the date such notice is mailed, or such later date
as is necessary to comply with requirements under the Exchange Act or any
applicable securities laws or regulations; (ii) that any Note not tendered will
continue to accrue interest; (iii) that, unless the Company defaults in the
payment of the Excess Proceeds Offer Price, any Notes accepted for payment
pursuant to the Excess Proceeds Offer shall cease to accrue interest after the
Excess Proceeds Offer Date; (iv) that Holders electing to have any Notes
purchased pursuant to an Excess Proceeds Offer shall be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Excess Proceeds Offer Date; (v) that Holders shall be entitled to withdraw
their election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Excess Proceeds Offer Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount at Maturity of Notes delivered for purchase, and a
statement that such Holder is withdrawing its election to have such Notes
purchased; (vi) that Holders whose Notes are being purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount at Maturity or an integral multiple thereof; (vii) the
instructions that the Holders of Notes must follow in order to tender their
Notes; and (viii) the circumstances and relevant facts regarding such Excess
Proceeds Offer.
(g) The Company shall comply to the extent applicable with the
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requirements of the tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws and regulations in connection
with an Excess Proceeds Offer.
SECTION 1016. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
Investments in the Company or any other Restricted Subsidiary, (d) transfer any
of its properties or assets to the Company or any other Restricted Subsidiary
or (e) guarantee any Indebtedness of the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any agreement in effect on the Issue Date, (ii) applicable law,
(iii) customary non-assignment provisions of any lease governing a leasehold
interest of the Company or any Restricted Subsidiary, (iv) any agreement or
other instrument of a Person acquired by the Company or any Restricted
Subsidiary in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, (v) the refinancing of
Indebtedness incurred under the agreements existing on the Issue Date, so long
as such encumbrances or restrictions are no less favorable in any material
respect to the Company or any Restricted Subsidiary than those contained in the
respective agreement as in effect on the Issue Date, (vi) restrictions
contained in any security agreement (including a capital lease obligation)
securing Indebtedness of the Company or a Restricted Subsidiary otherwise
permitted under this Indenture, (vii) customary nonassignment provisions
entered into in the ordinary course of business in leases and other agreements,
(viii) any restriction with respect to a Restricted Subsidiary of the Company
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary made in accordance with
Section 1015, (ix) pursuant to this Indenture and the Notes or (x) any
agreement or instrument governing or relating to Indebtedness under any senior
commercial bank facility (each, a "Bank Facility") if such encumbrance or
restriction applies only to (A) amounts which at any point in time (other than
during such periods as are described in the following clause (B)) (1) exceed
amounts due and payable (or which are to become due and payable within 30 days)
in respect of the Notes or this Indenture for interest, premium and principal
or (2) if paid, would result in an event described in the following clause (B)
of this sentence, or (B) during the pendency of any event that causes, permits
or, after notice or lapse of time, would cause or permit the holder(s) of
Indebtedness governed by such Bank Facility to declare such Indebtedness to be
immediately due and payable or to require cash collateralization or cash cover
for such Indebtedness for so long as such cash collateralization or cash cover
has not been provided.
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SECTION 1017. Limitation on Investments in Unrestricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any Investments in Unrestricted Subsidiaries if, at the
time thereof, the aggregate amount of such Investments would exceed the amount
of Restricted Payments then permitted to be made pursuant to Section 1009. Any
Investment in an Unrestricted Subsidiary permitted to be made pursuant to this
Section 1017 (i) shall be treated as the making of a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or any
Restricted Subsidiary, without duplication, under the provisions of clause (iv)
of paragraph (a) of Section 1009 and (ii) may be made in cash or property (if
made in property, the fair market value thereof as determined by the Company,
whose determination shall be conclusive) and shall be deemed to be the amount
of such Investment for the purpose of clause (i) of this Section 1017.
SECTION 1018. Limitation on Sale-Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary to,
enter into any sale-leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby the Company or a
Restricted Subsidiary sells or transfers such assets or properties and then or
thereafter leases such assets or properties or any part thereof or any other
assets or properties which the Company or such Restricted Subsidiary, as the
case may be, intends to use for substantially the same purpose or purposes as
the assets or properties sold or transferred.
The foregoing restriction shall not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights, of not
in excess of three years; (ii) the lease secures or relates to industrial
revenue or pollution control bonds; (iii) the transaction is solely between the
Company and any Wholly Owned Restricted Subsidiary or solely between Wholly
Owned Restricted Subsidiaries; or (iv) the Company or such Restricted
Subsidiary, within 12 months after the sale or transfer of any assets or
properties is completed, applies an amount not less than the net proceeds
received from such sale in accordance with Section 1015.
SECTION 1019. Business of the Company.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business activity other than (i) the delivery of
telephony or other telecommunications or data transmission services in North
America, (ii) telecommunications network construction services and (iii) any
business or activity reasonably related thereto, including, without limitation,
any business conducted by any Restricted Subsidiary on the date of this
Indenture and the acquisition, holding or exploitation of any
telecommunications licenses, permits, franchises or rights of way related to
the delivery of the services described in clause (i) above.
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SECTION 1020. Provision of Financial Statements and Reports.
(a) Prior to the consummation of the Exchange Offer or the effectiveness
of a Shelf Registration Statement, the Company shall make available, upon
request, to any holder of Notes or prospective purchasers of Notes the
information specified in Rule 144A(d)(4) under the Securities Act, unless the
Company furnishes information to the Commission pursuant to Section 13 or 15(d)
of the Exchange Act.
(b) After the consummation of the Exchange Offer or the effectiveness of a
Shelf Registration Statement, the Company shall file on a timely basis with the
Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that
the Company would be required to file if it were subject to Section 13 or 15(d)
of the Exchange Act. The Company shall also be required (a) to file with the
Trustee, copies of such reports and documents within 15 days after the date on
which such reports and documents are filed with the Commission or the date on
which the Company would be required to file such reports and documents if the
Company were so required, and (b) to provide to each Holder of Notes, without
cost to such Holder, copies of such reports and documents within 15 days after
the filing thereof with the Trustee.
SECTION 1021. Waiver of Certain Covenants.
The Company and the Restricted Subsidiaries may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1007 to 1012, inclusive, and Sections 1015 to 1020, inclusive, if before or
after the time for such compliance the Holders of at least a majority in
aggregate principal amount at Maturity of all Outstanding Notes affected by
such term, provision or covenant, by Act of such Holders, waive such compliance
in such instance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company, the Restricted Subsidiaries and the duties of the
Trustee, as applicable, in respect of any such term, provision or condition
shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
[reserved]
SECTION 1102. Redemption.
The Notes shall be redeemable, at the option of the Company, as a whole or
from time to time in part, at any time on or after March 1, 2003, subject to
the conditions and at the Redemption Prices specified in the form of Note, on
not less than 30 nor more than 60 days' prior notice at the redemption prices
(expressed as percentages of principal amount at Maturity) set forth below,
together with accrued interest, if any, to the redemption date, if redeemed
during the 12-month period beginning on March 1 of the years indicated below
(subject to the right of holders of record on relevant record dates to receive
interest due on a relevant Interest Payment Date):
Redemption
Year Price
---- ----------
2003 ................. 106.25%
2004 ................. 104.17
2005 ................. 102.08
2006 and thereafter .. 100.00
At any time or from time to time on or prior to March 1, 2001, the Company
may redeem within 60 days of one or more Public Equity Offerings up to 33 1/3%
of the aggregate principal amount at Maturity of the originally issued Notes
with the net proceeds of such offering at a redemption price equal to 112.5% of
the Accreted Value (determined at the redemption date) of such principal amount
at Maturity of Notes; provided that immediately after giving effect to any such
redemption, at least 66 2/3% of the aggregate principal amount at Maturity of
the originally issued Notes remain outstanding.
On and after the redemption date, original issue discount, on or prior to
March 1, 2003, and cash interest, after March 1, 2003, will cease to accrue on
Notes or portions thereof called for redemption and accepted for payment.
SECTION 1103. Applicability of Article.
Redemption of Notes at the election of the Company or otherwise, as
permitted
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or required by any provision of this Indenture, shall be made in accordance
with such provision and this Article.
SECTION 1104. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, not less than 45 nor more than 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount at Maturity of Notes to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Notes to be redeemed pursuant to Section 1105.
SECTION 1105. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
of Notes; provided, however, that no such partial redemption shall reduce the
portion of the principal amount at Maturity of a Note not redeemed to less than
$1,000.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount thereof to be redeemed. Notice of redemption
will be mailed, first-class postage prepaid, at least 30 but not more than 60
days before the redemption date to each holder of Notes to be redeemed at its
registered address.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Notes shall relate, in the case of any
Note redeemed or to be redeemed only in part, to the portion of the principal
amount of such Note which has been or is to be redeemed.
SECTION 1106. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1108, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice which
relates to such Note shall state that on and after the Redemption Date,
upon surrender of such Note, the Holder will receive, without charge, a
new Note or Notes of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1108) will become due and payable upon each such Note, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on
and after said date, and
(6) the place or places where such Notes are to be surrendered for
payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1107. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and accrued interest on, all the
Notes which are to be redeemed on that date.
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SECTION 1108. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to accrue original issue discount or cash interest. Upon surrender
of any such Note for redemption in accordance with said notice, such Note shall
be paid by the Company at the Redemption Price, together with accretion of
original issue discount or accrued interest, if any, to the Redemption Date;
provided, however, that accretion of original issue discount or installments of
interest, if any, whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Notes.
SECTION 1109. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at the
office or agency of the Company maintained for such purpose pursuant to Section
1002 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such ▇▇▇▇▇▇'s attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered.
ARTICLE TWELVE
[Reserved]
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
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100
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, effect defeasance of the
Notes under Section 1302, or covenant defeasance of the Notes under Section
1303, in accordance with the terms of the Notes and in accordance with this
Article.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise under Section 1301 of the option applicable to
this Section 1302, the Company shall be deemed to have been discharged from
their obligations with respect to the Outstanding Notes on the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1305 and the other Sections of this Indenture referred to
in (A) and (B) below, and to have satisfied all its other obligations under the
Notes and this Indenture insofar as the Notes are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Notes to receive, solely from the trust fund described in Section
1304 and as more fully set forth in such Section, payments in respect of the
Accreted Value of or the principal amount at Maturity of (and premium, if any)
and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 304, 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with
respect to such Notes.
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101
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise under Section 1301 of the option applicable to
this Section 1303, the Company shall be released from its obligations under
Section 802 and Sections 1005 through 1020 with respect to the Outstanding
Notes on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter, "covenant defeasance"), and such Notes shall thereafter
be deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(3) or 501(4) or otherwise, as
the case may be, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the Outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Notes, (A) an
amount in cash in United States dollars, or (B) U.S. Government Securities
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of the Accreted Value or the
principal amount at Maturity (including premium, if any) and interest, if
any, on such Notes, money in an amount, or (C) a combination thereof, in
each case in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the Accreted Value of or the principal amount at Maturity
of (and premium, if any, on) and interest on such Outstanding Notes on the
Stated Maturity of such principal (and premium, if any) or installment of
interest (or upon redemption, if applicable); provided that the Trustee
(or such qualifying trustee) shall have been irrevocably instructed to
apply such money or
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the proceeds of such U.S. Government Securities to said payments with
respect to such Notes;
(2) no Default or Event of Default with respect to such Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (6) and (7) of Section 501 are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(3) such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
is a party or is bound;
(4) in the case of an exercise under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since February 13, 1998, there has been a
change in the applicable federal income tax law or interpretation of such
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(5) in the case of an exercise under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred;
(6) in the case of defeasance or covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 90th day following the deposit or after the date such
Opinion of Counsel is delivered, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally; and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
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SECTION 1305. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1305, the "Trustee") pursuant to Sections 1304 and 1306 in respect of
such Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of the Accreted
Value or the principal amount at Maturity (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Securities
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Notes.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Securities (or other property and any
proceeds therefrom) held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1306. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1302 or 1303, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1305; provided, however, that if the Company makes any payment of Accreted
Value or the principal of (or premium, if any) or interest on any such Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
DTI HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
THE BANK OF NEW YORK,
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Authorized Signatory
113
Exhibit A
[FACE OF NOTE]
DTI HOLDINGS, INC.
12 1/2% [Series B]** Senior Discount Note due 2008
CUSIP ___________
No. _______
DTI HOLDINGS, INC., a Missouri corporation (the "Company", which term
includes any successor under this Indenture hereinafter referred to), for value
received, promises to pay to ___________, or its registered assigns, the
principal sum of _____________ Dollars ($________), on March 1, 2008.
The following information is supplied for purposes of Sections 1273 and
1275 of the Internal Revenue Code:
Issue Date: February 23, 1998
Issue Price $524.21
Original issue discount under
Section 1273 of the Internal
Revenue Code (for each $1,000
principal amount): $1,100.79
Yield to Maturity 12.94%
[Initial]*** Interest Rate: 12 1/2% per annum.
Interest Payment Dates: March 1 and September 1 of each year commencing
September 1, 2003.
Regular Record Dates: February 15 and August 15 of each year.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set
----------
** Include only for Exchange Notes
***Include only for Initial Notes
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forth at this place.
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A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Date: __________ DTI HOLDINGS, INC.
By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
(Form of Trustee's Certificate of Authentication)
This is one of the Notes referred to in the within-mentioned Indenture.
Dated: __________ THE BANK OF NEW YORK, Trustee
By: ___________________________
Authorized Signatory
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A-4
[REVERSE SIDE OF NOTE]
DTI HOLDINGS, INC.
12 1/2% [Series B]* Senior Discount Note due 2008
1. Principal and Interest.
The Company shall pay the principal of this Note on March 1, 2008.
The Company promises to pay interest on the principal amount of this Note
on each Interest Payment Date, as set forth below, at the rate of 12 1/2% per
annum, except that additional interest accrued on this Note pursuant to the
fourth paragraph of this Section 1 and pursuant to the Notes Registration Rights
Agreement (as defined herein) will accrue at the rate or rates borne by the
Notes from time to time as set forth in the Notes Registration Rights Agreement.
Interest shall be payable semi-annually (to the Holders of record of the
Notes (or any Predecessor Notes) at the close of business on the February 15 or
August 15 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing September 1, 2003.
The Holder of this Note shall be entitled to the benefits of the Notes
Registration Rights Agreement dated as of February 23, 1998, among the Company
and the Purchasers named therein (the "Notes Registration Rights Agreement").
In the event that (a) the Exchange Offer Registration Statement (as such term
is defined in the Notes Registration Rights Agreement) is not filed with the
Securities and Exchange Commission on or prior to the 50th calendar day
following the date of original issue of the Notes, (b) the Exchange Offer
Registration Statement (as such term is defined in the Notes Registration
Rights Agreement) has not been declared effective on or prior to the 180th
calendar day following the date of original issue of the Notes, (c) the
Exchange Offer (as such term is defined in the Notes Registration Rights
Agreement) is not consummated or, if required, a Shelf Registration Statement
(as such term is defined in the Notes Registration Rights Agreement) with
respect to the Notes is not declared effective on or prior to the 210th
calendar day following the date of original issue of the Notes or (d) the
Exchange Offer Registration Statement or the Shelf Registration Statement is
declared effective but thereafter ceases to be effective or usable except in
accordance with the Notes Registration Rights Agreement, the Company shall pay
additional interest on the Notes (in addition to the interest otherwise due on
----------
*Include only for Exchange Notes
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the Notes) in cash in arrears on each Interest Payment Date in an amount equal
to one-half of one percent per annum of the principal amount of the Notes with
respect to the first 90-day period following any of such events described in
clauses (a) through (d) above, which rate shall be increased by an additional
one-half of one percent per annum for each subsequent 90-day period until such
Registration Default has been cured; provided that the aggregate increase in
such annual interest rate shall in no event exceed one and one-half percent per
annum for each subsequent 90-day period. Upon (w) the filing of the Exchange
Offer Registration Statement after the 50-day period described in clause (a)
above, (x) the effectiveness of the Exchange Offer Registration Statement after
the 180-day period described in clause (b) above, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 210-day period described in clause (c) above or (z) the
cure of any event described in clause (d) above, such additional interest rate
borne by this Note from the date of such filing, effectiveness, consummation or
cure, as the case may be, shall cease to accrue; provided, however, that, if
after any such additional interest ceases to accrue, a different event
specified in clause (a), (b), (c) or (d) above occurs, such additional interest
rate may again be increased pursuant to the foregoing provisions.
Interest on this Note shall accrete original issue discount at the rate of
12 1/2% per annum, compounded semiannually, to an aggregate principal amount of
$506,000,000 by March 1, 2003, and shall bear cash interest at the rate of
12 1/2% per annum accruing from March 1, 2003, or from the most recent Interest
Payment Date to which cash interest has been paid or duly provided for; provided
that, if there is no existing default in the payment of interest and if this
Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at a
rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company shall pay interest (except defaulted interest) on the
principal amount of the Notes on each March 1 and September 1 (commencing
September 1, 2003) to the Persons who are Holders (as reflected in the Note
Register at the close of business on the February 15 and August 15 immediately
preceding the Interest Payment Date), in each case, even if the Note is
cancelled on registration of transfer or registration of exchange after such
Regular Record Date; provided that, with respect to the payment of principal,
the Company will make payment to the Holder that surrenders this Note to any
Paying Agent on or after March 1, 2008.
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The Company shall pay principal (and premium, if any) and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal
(and premium, if any) and interest by its check payable in immediately
available funds. The Company may pay interest on the Notes either (a) by
mailing a check for such interest to a Holder's registered address (as
reflected in the Note Register) or (b) by wire transfer to an account located
in the United States maintained by the payee. If a payment date is a date
other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee shall act as Paying Agent and Note Registrar. The
Company may change any Paying Agent or Note Registrar upon written notice
thereto. The Company and any Person authorized by the Company may act as
Paying Agent, Note Registrar or co-Note Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of February 23,
1998 (the "Indenture"), among the Company and The Bank of New York, trustee
(the "Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture,
the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Company. The Indenture
limits the aggregate principal amount at maturity of the Notes to $506,000,000.
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5. Redemption.
The Notes shall be redeemable, at the option of the Company, as a whole or
from time to time in part, at any time on or after March 1, 2003 on not less
than 30 nor more than 60 days' prior notice at the redemption prices (expressed
as percentages of principal amount at Maturity) set forth below, together with
accrued interest, if any, to the redemption date, if redeemed during the
12-month period beginning on March 1 of the years indicated below (subject to
the right of holders of record on relevant record dates to receive interest due
on a relevant Interest Payment Date):
Redemption
Year Price
---- ----------
2003 ................. 106.25%
2004 ................. 104.17
2005 ................. 102.08
2006 and thereafter .. 100.00
At any time or from time to time on or prior to March 1, 2001, the Company
may redeem within 60 days of one or more Public Equity Offerings up to 33 1/3%
of the aggregate principal amount at Maturity of the originally issued Notes
with the net proceeds of such offering at a redemption price equal to 112.5% of
the Accreted Value (determined at the redemption date) of such principal amount
at Maturity of Notes; provided that immediately after giving effect to any such
redemption, at least 66 2/3% of the aggregate principal amount at Maturity of
the originally issued Notes remain outstanding.
If less than all the Notes are to be redeemed, the particular Notes to be
redeemed will be selected not more than 60 days prior to the redemption date by
the Trustee by such method as the Trustee will deem fair and appropriate;
provided, however, that no such partial redemption will reduce the principal
amount at Maturity of a Note not redeemed to less than $1,000. Notice of
redemption will be mailed, first-class postage prepaid, at least 30 but not
more than 60 days before the redemption date to each holder of Notes to be
redeemed at its registered address. On and after the redemption date, original
issue discount, on or prior to March 1, 2003, and cash interest, after March 1,
2003, will cease to accrue on Notes or portions thereof called for redemption
and accepted for payment.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of a Change of Control, the Company is obligated to
make an offer to purchase all outstanding Notes at a purchase price of (i) 101%
of the Accreted Value thereof as the date of purchase if such a date is on or
before March 1, 2003 and (ii)
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101% of the principal amount thereof, plus accrued and unpaid cash interest, if
any, to the date of purchase if such date is after March 1, 2003. Upon the
occurrence of certain Asset Sales, the Company may be obligated to make offers
to purchase Notes with a portion of the Net Cash Proceeds of such Asset Sales
at a purchase price of (i) 100% of the Accreted Value thereof as the date of
purchase if such date is on or before March 1, 2003 and (ii) 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase if such date is after March 1, 2003.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The Note
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of the Accreted Value or principal (and premium,
if any) or interest remains unclaimed for one year, the Trustee and the Paying
Agent will pay the money back to the Company at its request. After that,
Holders entitled to the money must look to the Company for payment, unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
10. Discharge Prior to Maturity.
If the Company irrevocably deposits, or causes to be deposited, with the
Trustee money or U.S. Government Securities (or a combination thereof)
sufficient to pay the then outstanding Accreted Value or the principal amount
at Maturity (including premium, if any) and accrued interest, if any, on the
Notes on the Stated Maturity (or upon redemption, if applicable), and complies
with the other applicable conditions set forth in the Indenture, the Company
will be discharged from the Indenture and the Notes, except in certain
circumstances for certain sections thereof, or from certain covenants set forth
in the Indenture.
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11. Amendment; Supplement; Waiver.
Subject to certain exceptions and conditions, the Indenture or the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount at Maturity of the Notes then
outstanding, and any existing default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make
any change that does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without limitation,
covenants with respect to the following matters: (i) Indebtedness; (ii)
Restricted Payments; (iii) issuances and sales of Capital Stock of Restricted
Subsidiaries; (iv) transactions with Affiliates; (v) Liens; (vi) guarantees of
Indebtedness; (vii) disposition of proceeds of Asset Sales; (viii) dividend and
other payment restrictions affecting Restricted Subsidiaries; (ix)
consolidation, merger and certain transfers of assets; and (x) investments in
Unrestricted Subsidiaries. Within 120 days after the end of each fiscal year
and within 60 days after May 15 of each year, the Company must report to the
Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor person will be
released from those obligations.
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14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount at Maturity of the Notes then outstanding may declare all the
Notes to be immediately due and payable. If a bankruptcy or insolvency default
with respect to the Company or any of its Significant Subsidiaries occurs and
is continuing, the Notes automatically become immediately due and payable.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders
of at least a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may make loans to, accept deposits
from, perform services for, and otherwise deal with, the Company and its
Affiliates as if it were not the Trustee.
16. Authentication.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to DTI Holdings, Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of the date of an effective Registration Statement or the
Resale Restriction Termination Date, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Note Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 312 of the Indenture shall have
been satisfied.
Date: ______________________ _________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee: ________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ______________________ _________________________________________
NOTICE: To be executed by an
executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section
1014 or Section 1015 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1014 or Section 1015 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date: _____________________
Your Signature: ___________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.