EXHIBIT 4.1
EXECUTION COPY
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▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇.,
Issuer
to
THE BANK OF NEW YORK,
as Trustee
_________________________________
Indenture
Dated as of February 29, 2000
_________________________________
$800,000,000
11% Senior Notes Due 2008
TABLE OF CONTENTS
Page
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PARTIES..................................................................... 1
RECITALS OF THE COMPANY..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................. 2
Accreted Value............................................... 2
Acquired Debt................................................ 3
Act.......................................................... 3
Affiliate.................................................... 3
Affiliate Transaction........................................ 4
Agent Member................................................. 4
Asset Disposition............................................ 4
Attributable Value........................................... 5
Board of Directors........................................... 5
Board Resolution............................................. 5
Business Day................................................. 6
Capital Lease Obligation..................................... 6
Capital Stock................................................ 6
Cash Equivalents............................................. 6
Change of Control............................................ 7
Change of Control Triggering Event........................... 8
Code......................................................... 8
Commission................................................... 8
Common Stock................................................. 8
Company...................................................... 8
Company Order................................................ 8
Consolidated Capital Ratio................................... 8
Consolidated Cash Flow Available for
Fixed Charges.............................................. 9
Consolidated Income Tax Expense.............................. 10
Consolidated Interest Expense................................ 10
Consolidated Net Income...................................... 10
Consolidated Net Worth...................................... 11
Consolidated Tangible Assets................................ 12
Corporate Trust Office...................................... 12
Credit Agreement............................................ 12
Credit Facilities........................................... 12
Debt........................................................ 12
Default..................................................... 13
Defaulted Interest.......................................... 13
Depository.................................................. 13
Designation................................................. 14
Disqualified Stock.......................................... 14
Disqualified Stock Dividends................................ 14
Dollar Notes................................................ 14
Eligible Receivables........................................ 14
Euro Notes.................................................. 14
European Government Obligation.............................. 15
European Union.............................................. 15
Event of Default............................................ 15
Exchange Act................................................ 15
Exchange Securities......................................... 15
Excess Proceeds............................................. 15
Existing Notes.............................................. 15
Expiration Date............................................. 15
Fair Market Value........................................... 16
Federal Bankruptcy Code..................................... 16
Global Security............................................. 16
Government Securities....................................... 16
Guarantee................................................... 16
Guarantor................................................... 17
Holder...................................................... 17
Incur....................................................... 17
Indenture................................................... 17
Initial Purchasers.......................................... 18
Initial Securities.......................................... 18
Institutional Accredited Investor........................... 18
Institutional Accredited Investor
Global Security........................................... 18
Interest Payment Date....................................... 18
Interest Rate or Currency Protection
Agreement................................................. 18
Invested Capital............................................ 18
Investment.................................................. 19
Issue Date.................................................. 19
Issue Date Purchase Money Debt.............................. 19
Issue Date Rating........................................... 19
Joint Venture............................................... 20
Lien........................................................ 20
Maturity.................................................... 20
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Measurement Date............................................ 20
▇▇▇▇▇'▇..................................................... 20
Net Available Proceeds...................................... 21
New Convertible Notes....................................... 22
9 1/8% Senior Notes......................................... 22
Non-Global Purchasers....................................... 22
Offer....................................................... 22
Offer to Purchase........................................... 23
Officers' Certificate....................................... 25
Opinion of Counsel.......................................... 26
OECD........................................................ 26
Outstanding................................................. 26
Paying Agent................................................ 27
Permitted Holders........................................... 27
Permitted Interest Rate or Currency
Protection Agreement...................................... 27
Permitted Investments....................................... 28
Permitted Liens............................................. 28
Permitted Telecommunications Capital
Asset Disposition......................................... 29
Person...................................................... 29
Physical Security........................................... 29
Predecessor Security........................................ 30
Preferred Stock............................................. 30
Preferred Stock Dividends................................... 30
Private Exchange Offer...................................... 30
Private Exchange Securities................................. 30
Private Placement Legend.................................... 30
Property.................................................... 30
Proportionate Interest...................................... 31
Purchase Amount............................................. 31
Purchase Date............................................... 31
Purchase Money Debt......................................... 31
Purchase Price.............................................. 31
Qualified Institutional Buyer............................... 31
QIB......................................................... 31
Qualified Receivable Facility............................... 31
Rating Agencies............................................. 32
Rating Date................................................. 32
Rating Decline.............................................. 32
Receivables................................................. 32
refinancing................................................. 32
Registered Exchange Offer................................... 32
Registration Agreement...................................... 32
Registration Default........................................ 33
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Regular Record Date......................................... 33
Regulation S................................................ 33
Regulation S Global Security................................ 33
Required Filing Dates....................................... 33
Responsible Officer......................................... 33
Restricted Payment.......................................... 33
Restricted Subsidiary....................................... 33
Restricted Subsidiary Guarantee............................. 33
Revocation.................................................. 34
Rule 144A................................................... 34
Rule 144A Global Security................................... 34
S&P......................................................... 34
Sale and Leaseback Transaction.............................. 34
Securities.................................................. 34
Securities Act.............................................. 34
Security Register........................................... 35
Shelf Registration Statement................................ 35
Significant Subsidiary...................................... 35
6% Convertible Notes........................................ 35
Special Assets.............................................. 35
Special Interest............................................ 35
Special Record Date......................................... 35
Stated Maturity............................................. 35
Subordinated Debt........................................... 36
Subsidiary.................................................. 37
Telecommunications/IS Assets................................ 37
Telecommunications/IS Business.............................. 38
10 1/2% Senior Discount Notes............................... 38
Trust Indenture Act......................................... 38
TIA......................................................... 38
Trustee..................................................... 38
Unrestricted Subsidiary..................................... 38
Vice President.............................................. 38
Voting Stock................................................ 38
Wholly Owned Subsidiary..................................... 38
SECTION 102. Compliance Certificates and Opinions......................... 38
SECTION 103. Form of Documents Delivered to Trustee....................... 40
SECTION 104. Acts of Holders.............................................. 41
SECTION 105. Notices, etc., to Trustee and Company........................ 43
SECTION 106. Notice to Holders; Waiver.................................... 44
SECTION 107. Effect of Headings and Table of Contents..................... 44
SECTION 108. Successors and Assigns....................................... 44
SECTION 109. Separability Clause.......................................... 45
SECTION 110. Benefits of Indenture........................................ 45
SECTION 111. Governing Law................................................ 45
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SECTION 112. Conflict with Trust Indenture Act............................ 45
SECTION 113. Legal Holidays............................................... 45
SECTION 114. No Personal Liability of Directors,
Officers, Employees and Stockholders....................... 46
SECTION 115. Independence of Covenants.................................... 46
SECTION 116. Exhibits..................................................... 46
SECTION 117. Counterparts................................................. 47
SECTION 118. Duplicate Originals.......................................... 47
ARTICLE TWO SECURITY FORMS
SECTION 201. Forms Generally.............................................. 47
ARTICLE THREE THE SECURITIES
SECTION 301. Title and Terms.............................................. 48
SECTION 302. Denominations................................................ 49
SECTION 303. Execution, Authentication, Delivery
and Dating................................................. 49
SECTION 304. Temporary Securities......................................... 52
SECTION 305. Registration, Registration of Transfer
and Exchange............................................... 52
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities................................................. 54
SECTION 307. Payment of Interest; Interest Rights
Preserved.................................................. 55
SECTION 308. Persons Deemed Owners........................................ 57
SECTION 309. Cancellation................................................. 57
SECTION 310. Computation of Interest...................................... 58
SECTION 311. CUSIP Number................................................. 58
SECTION 312. Book-Entry Provisions for Global Securities.................. 59
SECTION 313. Special Transfer Provisions.................................. 61
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 68
SECTION 402. Application of Trust Money................................... 70
ARTICLE FIVE REMEDIES
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SECTION 501. Events of Default............................................ 70
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 72
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee..................................... 73
SECTION 504. Trustee May File Proofs of Claim............................. 75
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities................................................. 76
SECTION 506. Application of Money Collected............................... 76
SECTION 507. Limitation on Suits.......................................... 77
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................... 77
SECTION 509. Restoration of Rights and Remedies........................... 78
SECTION 510. Rights and Remedies Cumulative............................... 78
SECTION 511. Delay or Omission Not Waiver................................. 78
SECTION 512. Control by Holders........................................... 79
SECTION 513. Waiver of Past Defaults...................................... 79
SECTION 514. Waiver of Stay or Extension Laws............................. 80
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................... 80
SECTION 602. Notice of Default............................................ 82
SECTION 603. Certain Rights of Trustee.................................... 82
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Securities.............................................. 84
SECTION 605. May Hold Securities.......................................... 84
SECTION 606. Money Held in Trust.......................................... 84
SECTION 607. Compensation and Reimbursement............................... 85
SECTION 608. Corporate Trustee Required; Eligibility;
Conflicting Interests...................................... 86
SECTION 609. Resignation and Removal; Appointment of Successor............ 86
SECTION 610. Acceptance of Appointment by Successor....................... 88
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business................................................ 90
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses
of Holders................................................. 90
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SECTION 702. Reports by Trustee........................................... 91
SECTION 703. Reports by Company........................................... 91
ARTICLE EIGHT CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms......... 92
SECTION 802. Successor Company Substituted................................ 94
SECTION 803. Guarantor May Consolidate, etc., Only on
Certain Terms.............................................. 94
SECTION 804. Successor Guarantor Substituted.............................. 96
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders......................................... 97
SECTION 902. Supplemental Indentures With Consent of Holders.............. 98
SECTION 903. Execution of Supplemental Indentures......................... 99
SECTION 904. Effect of Supplemental Indentures............................ 100
SECTION 905. Conformity with Trust Indenture Act.......................... 100
SECTION 906. Reference in Securities to Supplemental
Indentures................................................. 100
SECTION 907. Notice of Supplemental Indentures............................ 100
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium,
if any, and Interest...................................... 101
SECTION 1002. Maintenance of Office or Agency............................. 101
SECTION 1003. Money for Security Payments to Be Held in
Trust..................................................... 102
SECTION 1004. Corporate Existence......................................... 104
SECTION 1005. Maintenance of Properties................................... 104
SECTION 1006. Insurance................................................... 105
SECTION 1007. Reports..................................................... 105
SECTION 1008. Statement by Officers as to Default......................... 106
SECTION 1009. Change of Control Triggering Event.......................... 106
SECTION 1010. Limitation on Consolidated Debt............................. 110
SECTION 1011. Limitation on Debt of Restricted
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Subsidiaries.............................................. 115
SECTION 1012. Limitation on Restricted Payments........................... 117
SECTION 1013. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries.............................................. 121
SECTION 1014. Limitation on Liens......................................... 123
SECTION 1015. Limitation on Sale and Leaseback
Transactions.............................................. 125
SECTION 1016. Limitation on Asset Dispositions............................ 126
SECTION 1017. Limitation on Issuance and Sales of
Capital Stock of Restricted
Subsidiaries.............................................. 128
SECTION 1018. Transactions with Affiliates................................ 130
SECTION 1019. Limitation on Designations of
Unrestricted Subsidiaries................................. 132
ARTICLE ELEVEN
[INTENTIONALLY OMITTED]
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance................................. 135
SECTION 1202. Defeasance and Discharge.................................... 135
SECTION 1203. Covenant Defeasance......................................... 136
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance................................................ 138
SECTION 1205. Deposited Money and Government Securities
to Be Held in Trust; Other
Miscellaneous Provisions.................................. 140
SECTION 1206. Reinstatement............................................... 140
EXHIBIT A - Form of Security
EXHIBIT B - Form of Supplemental Indenture
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INDENTURE, dated as of February 29, 2000 between Level 3
Communications, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Bank of
New York, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 11% Senior
Notes Due 2008 (the "Initial Securities") and, if and when issued pursuant to a
Registered Exchange Offer or Private Exchange Offer pursuant to the Registration
Agreement for the Initial Securities, 11% Senior Notes Due 2008 (the "Exchange
Securities" and, together with the Initial Securities, the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of each of the Company and the Trustee, in
accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
2
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, including the recitals set forth
above, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
United States generally accepted accounting principles as in effect on
the date of this Indenture;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section, paragraph or other subdivision;
(e) unless otherwise indicated, references to Articles,
Sections, paragraphs or other subdivisions are references to such
Articles, Sections, paragraphs or other subdivisions of this Indenture;
and
3
(f) "or" is not exclusive and "including" means including
without limitation.
"Accreted Value" of any Debt issued at a price less than the principal
amount at stated maturity, means, as of any date of determination, an amount
equal to the sum of (a) the issue price of such Debt as determined in accordance
with Section 1273 of the Code or any successor provisions plus (b) the aggregate
of the portions of the original issue discount (the excess of the amounts
considered as part of the "stated redemption price at maturity" of such Debt
within the meaning of Section 1273(a)(2) of the Code or any successor
provisions, whether denominated as principal or interest, over the issue price
of such Debt) that shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of such Debt to the date of determination, minus all amounts theretofore
paid in respect of such Debt, which amounts are considered as part of the
"stated redemption price at maturity" of such Debt within the meaning of Section
1273(a)(2) of the Code or any successor provisions (whether such amounts paid
were denominated principal or interest).
"Acquired Debt" means, with respect to any specified Person, (i) Debt
of any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Subsidiary of such specified Person and (ii) Debt
secured by a Lien encumbering any Property acquired by such specified Person,
which Debt was not incurred in anticipation of, and was outstanding prior to,
such merger, consolidation or acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
4
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 1016 and 1018 and the definition of "Telecommunications/IS
Assets" only, "Affiliate" shall also mean any beneficial owner of shares
representing 10% or more of the total voting power of the Voting Stock (on a
fully diluted basis) of the Company or of rights or warrants to purchase such
Voting Stock (whether or not currently exercisable) and any Person who would be
an Affiliate of any such beneficial owner pursuant to the first sentence hereof.
"Affiliate Transaction" has the meaning specified in Section 1018.
"Agent Member" has the meaning specified in Section 312.
"Asset Disposition" means any transfer, conveyance, sale, lease,
issuance or other disposition by the Company or any Restricted Subsidiary in one
or more related transactions (including a consolidation or merger or other sale
of any such Restricted Subsidiary with, into or to another Person in a
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary of the Company, but excluding a disposition by a Restricted
Subsidiary to the Company or a Restricted Subsidiary or by the Company to a
Restricted Subsidiary) of (i) shares of Capital Stock or other ownership
interests of a Restricted Subsidiary (other than as permitted by clause (v),
(vi), (vii) or (ix) of Section 1017), (ii) substantially all of the assets of
the Company or any Restricted Subsidiary representing a division or line of
business or (iii) other Property of the Company or any Restricted Subsidiary
outside of the ordinary course of business (excluding any transfer, conveyance,
sale, lease or other disposition of equipment that is obsolete or no longer used
by or useful to the Company, provided that the Company has delivered to the
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Trustee an Officers' Certificate stating that such criteria are satisfied);
provided in each case that the aggregate consideration for such transfer,
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conveyance, sale, lease or other disposition is equal to $5,000,000 or more in
any 12-month period. The following shall not be Asset Dispositions: (i)
Permitted Telecommunications Capital Asset Dispositions that comply with clause
(i) of the first paragraph of Section 1016, (ii) when used with respect to the
Company, any Asset
5
Disposition permitted pursuant to Article Eight which constitutes a disposition
of all or substantially all of the assets of the Company and the Restricted
Subsidiaries taken as a whole, (iii) Receivables sales constituting Debt under
Qualified Receivable Facilities permitted to be Incurred pursuant to Section
1010 and (iv) any disposition that constitutes a Permitted Investment or a
Restricted Payment permitted by Section 1012.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the remaining
term thereof (including any period for which such lease has been extended) as
determined in accordance with generally accepted accounting principles,
discounted from the last date of such remaining term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of penalty, such net amount shall also
include the lesser of the amount of such penalty (in which case no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated) or the rent which would otherwise be
required to be paid if such lease is not so terminated. "Attributable Value"
means, as to a Capital Lease Obligation, the principal amount thereof.
"Board of Directors" means the board of directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amount under a lease of (or other Debt arrangements
conveying the right to use) Property of such Person which is required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles (a "Capital Lease"). The stated maturity of such obligation shall be
the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty. The principal amount of such obligation shall be
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person and any rights (other than debt securities convertible
or exchangeable into an equity interest), warrants or options to acquire an
equity interest in such Person.
"Cash Equivalents" means (i) Government Securities maturing, or subject
to tender at the option of the holder thereof, within two years after the date
of acquisition thereof, (ii) time deposits and certificates of deposit of any
commercial bank organized in the United States having capital and surplus in
excess of $500,000,000 or a commercial bank organized under the law of any other
country that is a member of the OECD having total assets in excess of
$500,000,000 (or its foreign currency equivalent at the time) with a maturity
date not more than one year from the date of acquisition, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with (x) any bank meeting
the qualifications specified in
7
clause (ii) above or (y) any primary government securities dealer reporting to
the Market Reports Division of the Federal Reserve Bank of New York, (iv) direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing, or
subject to tender at the option of the holder thereof, within 90 days after the
date of acquisition thereof, provided that, at the time of acquisition, the
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long-term debt of such state, political subdivision or public instrumentality
has a rating of A (or higher) from S&P or A-2 (or higher) from ▇▇▇▇▇'▇ (or, if
at any time neither S&P nor ▇▇▇▇▇'▇ shall be rating such obligations, then an
equivalent rating from such other nationally recognized rating service
acceptable to the Trustee), (v) commercial paper issued by the parent
corporation of any commercial bank organized in the United States having capital
and surplus in excess of $500,000,000 or a commercial bank organized under the
laws of any other country that is a member of the OECD having total assets in
excess of $500,000,000 (or its foreign currency equivalent at the time), and
commercial paper issued by others having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇ (or, if at any time neither S&P nor
▇▇▇▇▇'▇ shall be rating such obligations, then from such other nationally
recognized rating service acceptable to the Trustee) and in each case maturing
within one year after the date of acquisition, (vi) overnight bank deposits and
bankers' acceptances at any commercial bank organized in the United States
having capital and surplus in excess of $500,000,000 or a commercial bank
organized under the laws of any other country that is a member of the OECD
having total assets in excess of $500,000,000 (or its foreign currency
equivalent at the time), (vii) deposits available for withdrawal on demand with
a commercial bank organized in the United States having capital and surplus in
excess of $500,000,000 or a commercial bank organized under the laws of any
other country that is a member of the OECD having total assets in excess of
$500,000,000 (or its foreign currency equivalent at the time) and (viii)
investments in money market funds substantially all of whose assets comprise
securities of the types described in clauses (i) through (vii).
"Change of Control" has the meaning specified in Section 1009.
8
"Change of Control Triggering Event" has the meaning specified in
Section 1009.
"Code" means the Internal Revenue Code of 1986, as amended.
"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.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"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.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, the President or a Vice President, and
by the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee.
"Consolidated Capital Ratio" means as of the date of determination the
ratio of (i) the aggregate amount of Debt of the Company and its Restricted
Subsidiaries on a consolidated basis as at the date of determination to (ii) the
sum of (a) $2,024,000,000, (b) the aggregate net proceeds to the Company from
the issuance or sale of any Capital Stock (including Preferred Stock) of the
Company other than Disqualified Stock subsequent to the Measurement
9
Date, (c) the aggregate net proceeds from the issuance or sale of Debt of the
Company or any Restricted Subsidiary subsequent to the Measurement Date
convertible or exchangeable into Capital Stock of the Company other than
Disqualified Stock, in each case upon conversion or exchange thereof into
Capital Stock of the Company subsequent to the Measurement Date and (d) the
after-tax gain on the sale, subsequent to the Measurement Date, of Special
Assets to the extent such Special Assets have been sold for cash, Cash
Equivalents, Telecommunications/IS Assets or the assumption of Debt of the
Company or any Restricted Subsidiary (other than Debt that is subordinated to
the Securities or any applicable Restricted Subsidiary Guarantee) and release of
the Company and all Restricted Subsidiaries from all liability on the Debt
assumed; provided, however, that, for purposes of calculation of the
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Consolidated Capital Ratio, the net proceeds from the issuance or sale of
Capital Stock or Debt described in clause (b) or (c) above shall not be included
to the extent (x) such proceeds have been utilized to make a Permitted
Investment under clause (i) of the definition thereof or a Restricted Payment or
(y) such Capital Stock or Debt shall have been issued or sold to the Company, a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of their
employees.
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Company and its Restricted Subsidiaries
for such period increased by the sum of, to the extent reducing Consolidated Net
Income for such period, (i) Consolidated Interest Expense of the Company and its
Restricted Subsidiaries for such period, plus (ii) Consolidated Income Tax
Expense of the Company and its Restricted Subsidiaries for such period, plus
(iii) consolidated depreciation and amortization expense and any other non-cash
items (other than any such non-cash item to the extent that it represents an
accrual of or reserve for cash expenditures in any future period); provided,
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however, that there shall be excluded therefrom the Consolidated Cash Flow
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Available for Fixed Charges (if positive) of any Restricted Subsidiary
(calculated separately for such Restricted Subsidiary in the same manner as
provided above for the Company) that is subject to a restriction which prevents
the payment of dividends or the
10
making of distributions to the Company or another Restricted Subsidiary to the
extent of such restrictions.
"Consolidated Income Tax Expense" for any period means the aggregate
amounts of the provisions for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" for any period means the interest
expense included in a consolidated income statement (excluding interest income)
of the Company and its Restricted Subsidiaries for such period in accordance
with generally accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i) the
amortization of Debt discounts and issuance costs, including commitment fees;
(ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) net costs with respect to interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements (including fees); (iv) Preferred Stock Dividends (other than
dividends paid in shares of Preferred Stock that is not Disqualified Stock)
declared and paid or payable; (v) accrued Disqualified Stock Dividends, whether
or not declared or paid; (vi) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries; (vii) the portion of any Capital Lease Obligation or
Sale and Leaseback Transaction paid during such period that is allocable to
interest expense; (viii) interest Incurred in connection with investments in
discontinued operations; and (ix) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the Company
or a Restricted Subsidiary) in connection with Debt Incurred by such plan or
trust.
"Consolidated Net Income" for any period means the net income (or loss)
of the Company and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
provided that there shall be excluded therefrom (a) for purposes of Section 1012
--------
only, the net income (or loss) of any Person acquired by the Company or a
Restricted Subsidiary in a pooling-of-interests transaction for any period
11
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Restricted Subsidiary except to the extent of the amount of
dividends or other distributions actually paid to the Company or a Restricted
Subsidiary by such Person during such period (except, for purposes of Section
1012 only, to the extent such dividends or distributions have been subtracted
from the calculation of the amount of Investments to support the actual making
of Investments), (c) gains or losses realized upon the sale or other disposition
of any Property of the Company or its Restricted Subsidiaries that is not sold
or disposed of in the ordinary course of business (it being understood that
Permitted Telecommunications Capital Asset Dispositions shall be considered to
be in the ordinary course of business), (d) gains or losses realized upon the
sale or other disposition of any Special Assets, (e) all extraordinary gains and
extraordinary losses, determined in accordance with generally accepted
accounting principles, (f) the cumulative effect of changes in accounting
principles, (g) non-cash gains or losses resulting from fluctuations in currency
exchange rates, (h) any non-cash expense related to the issuance to employees or
directors of the Company or any Restricted Subsidiary of (1) options to purchase
Capital Stock of the Company or such Restricted Subsidiary or (2) other
compensatory rights; provided, in either case, that such options or rights, by
--------
their terms can be redeemed at the option of the holder of such option or right
only for Capital Stock, and (i) with respect to a Restricted Subsidiary that is
not a Wholly Owned Subsidiary any aggregate net income (or loss) in excess of
the Company's or any Restricted Subsidiary's pro rata share of the net income
(or loss) of such Restricted Subsidiary that is not a Wholly Owned Subsidiary;
provided further that there shall further be excluded therefrom the net income
----------------
(but not net loss) of any Restricted Subsidiary that is subject to a restriction
which prevents the payment of dividends or the making of distributions to the
Company or another Restricted Subsidiary to the extent of such restriction.
"Consolidated Net Worth" of any Person means the stockholders' equity
of such Person, determined on a consolidated basis in accordance with generally
accepted accounting principles, less amounts attributable to Disqualified Stock
of such Person.
12
"Consolidated Tangible Assets" of any Person means the total amount of
assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Subsidiaries after deducting
therefrom all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such consolidated
balance sheet.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Credit Agreement" means the Credit Agreement dated as of September 30,
1999, among the Company, certain subsidiaries of the Company, the lenders
parties thereto and The Chase Manhattan Bank, as Administrative Agent and
Collateral Agent.
"Credit Facilities" means one or more credit agreements, loan
agreements or similar facilities, secured or unsecured, providing for revolving
credit loans, term loans and/or letters of credit, including the Credit
Agreement and any Qualified Receivable Facility, entered into from time to time
by the Company and its Restricted Subsidiaries, and including any related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, supplemented, modified,
restated or replaced from time to time.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of Property, (iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (iv) every obligation of such Person issued or
13
assumed as the deferred purchase price of Property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person and all Attributable Value in respect of Sale and
Leaseback Transactions entered into by such Person, (vi) all obligations to
redeem or repurchase Disqualified Stock issued by such Person, (vii) the
liquidation preference of any Preferred Stock (other than Disqualified Stock,
which is covered by the preceding clause (vi)) issued by any Restricted
Subsidiary of such Person, (viii) every obligation under Interest Rate or
Currency Protection Agreements of such Person and (ix) every obligation of the
type referred to in clauses (i) through (viii) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any Debt issued at a price that
is less than the principal amount at maturity thereof, shall be, except as
otherwise set forth herein, the Accreted Value of such Debt at such time or (b)
in the case of any Receivables sale constituting Debt, the amount of the
unrecovered purchase price (that is, the amount paid for Receivables that has
not been actually recovered from the collection of such Receivables) paid by the
purchaser (other than the Company or a Wholly Owned Restricted Subsidiary of the
Company) thereof. The amount of Debt represented by an obligation under an
Interest Rate or Currency Protection Agreement shall be equal to (x) zero if
such obligation has been Incurred pursuant to clause (x) of paragraph (b) of
Section 1010 or (y) the notional amount of such obligation if not Incurred
pursuant to such clause.
"Default" means any event, act or condition the occurrence of which is,
or after notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means The Depository Trust Company, its nominees and
successors.
14
"Designation" and "Designation Amount" have the respective meanings
specified in Section 1019.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final Stated Maturity of the Securities;
provided, however, that any Preferred Stock which would not constitute
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Disqualified Stock but for provisions thereof giving holders thereof the right
to require the Company to repurchase or redeem such Preferred Stock upon the
occurrence of a change of control occurring prior to the final Stated Maturity
of the Securities shall not constitute Disqualified Stock if the change of
control provisions applicable to such Preferred Stock are no more favorable to
the holders of such Preferred Stock than the provisions applicable to the
Securities contained in Section 1009 and such Preferred Stock specifically
provides that the Company will not repurchase or redeem any such stock pursuant
to such provisions prior to the Company's repurchase of such Securities as are
required to be repurchased pursuant to Section 1009.
"Disqualified Stock Dividends" means all dividends with respect to
Disqualified Stock of the Company held by Persons other than a Wholly Owned
Restricted Subsidiary. The amount of any such dividend shall be equal to the
quotient of such dividend divided by the difference between one and the maximum
statutory federal income tax rate (expressed as a decimal number between 1 and
0) applicable to the Company for the period during which such dividends were
paid.
"Dollar Notes" means, collectively, the Company's 11 1/4% Senior Notes
due 2010 in an aggregate principal amount not to exceed $250,000,000 and the
Company's 12 7/8% Senior Discount Notes due 2010 in an aggregate principal
amount at maturity not to exceed $675,000,000.
"Eligible Receivables" means, at any time, Receivables of the Company
and its Restricted Subsidiaries, as evidenced on the most recent quarterly
consolidated balance sheet of
15
the Company as at a date at least 45 days prior to such time, arising in the
ordinary course of business of the Company or any Restricted Subsidiary.
"Euro Notes" means, collectively, the Company's 10 3/4% Senior Euro
Notes due 2008 in an aggregate principal amount not to exceed (Euro) 500,000,000
and the Company's 11 1/4% Senior Euro Notes due 2010 in an aggregate principal
amount not to exceed (Euro) 300,000,000.
"European Government Obligation" means direct non-callable obligations
of, or non-callable obligations permitted by, any state member of the European
Union, the payment or guarantee of which is secured by the pledge of the full
faith and credit of the respective nation, provided that such nation has a
--------
credit rating at least equal to that of the highest rated member nation of the
member nations of the European Union.
"European Union" means the state members to the third stage of economic
and monetary union pursuant to the Treaty of Rome establishing the European
Community, as amended by the Treaty on European Union, signed at Maastricht on
February 7, 1992, and the Treaty signed at Amsterdam on October 2, 1997.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder (or respective
successors thereto).
"Exchange Securities" has the meaning stated in the first recital of
this Indenture.
"Excess Proceeds" has the meaning specified in Section 1016.
"Existing Notes" means the 91/8% Senior Notes, the 10 1/2% Senior
Discount Notes and the 6% Convertible Notes.
"Expiration Date" has the meaning specified in "Offer to Purchase"
below.
16
"Fair Market Value" means, with respect to any Property, the price that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under pressure
or compulsion to complete the transaction. Unless otherwise specified herein,
Fair Market Value shall be determined by the Board of Directors acting in good
faith and shall be evidenced by a Board Resolution delivered to the Trustee.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Global Security" means a Rule 144A Global Security, an Institutional
Accredited Investor Global Security or a Regulation S Global Security, as the
case may be.
"Government Securities" means direct obligations of, or obligations
fully and unconditionally guaranteed or insured by, the United States of America
or any agency or instrumentality thereof for the payment of which obligations or
guarantee the full faith and credit of the United States is pledged and which
are not callable or redeemable at the issuer's option (unless, for purposes of
the definition of "Cash Equivalents" only, the obligations are redeemable or
callable at a price not less than the purchase price paid by the Company or the
applicable Restricted Subsidiary, together with all accrued and unpaid interest
(if any) on such Government Securities).
"Guarantee" by any Person means any obligation, direct or indirect,
contingent or otherwise, of such Person guaranteeing, or having the economic
effect of guaranteeing, any Debt of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Debt, including any such obligations arising by virtue of partnership
arrangements or by agreements to keep-well, (ii) to purchase Property or
services or to take-or-pay for the purpose of assuring the holder of such Debt
of the payment of such Debt, (iii) to
17
maintain working capital, equity capitalor other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt or (iv) entered into for the purpose of assuring in any other manner
the obligee against loss in respect thereof, in whole or in part (and
"Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guarantee by any Person shall not
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include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Guarantor" means a Restricted Subsidiary of the Company that has
executed a Restricted Subsidiary Guarantee, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
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change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt and that neither the accrual of interest nor the
accretion of original issue discount shall be deemed an Incurrence of Debt. Debt
otherwise incurred by a Person before it becomes a Subsidiary of the Company
shall be deemed to have been Incurred at the time at which it becomes a
Subsidiary.
"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.
18
"Initial Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Chase Securities, Inc., ▇.▇. ▇▇▇▇▇▇
Securities, Inc., Credit Suisse First Boston Corporation, BNY Capital Markets,
Inc. and First Union Securities, Inc.
"Initial Securities" has the meaning stated in the first recital of
this Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Institutional Accredited Investor Global Security" has the meaning
specified in Section 303.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including caps, floors, collars and similar
agreements) relating to, or the value of which is dependent upon, interest rates
or currency exchange rates or indices.
"Invested Capital" means the sum of (a) $500,000,000, (b) the aggregate
net proceeds received by the Company from the issuance or sale of any Capital
Stock, including Preferred Stock, of the Company but excluding Disqualified
Stock, subsequent to the Measurement Date, and (c) the aggregate net proceeds
from the issuance or sale of Debt of the Company or any Restricted Subsidiary
subsequent to the Measurement Date convertible or exchangeable into Capital
Stock of the Company other than Disqualified Stock, in each case upon conversion
or exchange thereof into Capital Stock of the Company subsequent to the
Measurement Date; provided, however, that the net proceeds from the issuance or
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sale of Capital Stock or Debt described in clause (b) or (c) shall be excluded
from any computation of Invested Capital to the extent (i) utilized to make a
Restricted Payment or (ii) such Capital Stock or Debt shall have been issued or
sold to the Company, a Subsidiary of the Company or an employee stock ownership
plan or trust established by the
19
Company or any such Subsidiary for the benefit of their employees.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other Property to others or payments for Property or services for the
account or use of others, or otherwise) to, purchase, redemption, retirement or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by, or Incurrence of, or payment on, a Guarantee of any
obligation of, any other Person; provided that Investments shall exclude
--------
commercially reasonable extensions of trade credit. The amount, as of any date
of determination, of any Investment shall be the original cost of such
Investment, plus the cost of all additions, as of such date, thereto and minus
the amount, as of such date, of any portion of such Investment repaid to such
Person in cash as a repayment of principal or a return of capital, as the case
may be (except to the extent such repaid amount has been included in
Consolidated Net Income to support the actual making of Restricted Payments),
but without any other adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment. In
determining the amount of any Investment involving a transfer of any Property
other than cash, such Property shall be valued at its Fair Market Value at the
time of such transfer.
"Issue Date" means the date on which the Initial Securities are
initially issued.
"Issue Date Purchase Money Debt" means Purchase Money Debt outstanding
on the Issue Date; provided, that the amount of such Purchase Money Debt when
--------
Incurred did not exceed 100% of the cost of the construction, installation,
acquisition, lease, development or improvement of the applicable
Telecommunications/IS Assets.
"Issue Date Rating" means B3 in the case of Moody's and B in the case
of S&P, which are the respective ratings assigned to the Securities by the
Rating Agencies on the Issue Date.
20
"Joint Venture" means a Person in which the Company or a Restricted
Subsidiary holds not more than 50% of the shares of Voting Stock.
"Lien" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness), encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property (including any Capital Lease Obligation,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing and any Sale and Leaseback
Transaction). For purposes of this definition the sale, lease, conveyance or
other transfer by the Company or any of its Subsidiaries of, including the grant
of indefeasible rights of use or equivalent arrangements with respect to, dark
or lit communications fiber capacity or communications conduit shall not
constitute a Lien.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration or otherwise.
"Measurement Date" means April 28, 1998, the date the 91/8% Senior
Notes were originally issued.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or, if ▇▇▇▇▇'▇
Investors Service, Inc. shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
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that if ▇▇▇▇▇'▇ Investors Service, Inc. ceases rating debt securities having a
maturity at original issuance of at least one year and its ratings business with
respect thereto shall not have been transferred to any successor Person, then
"Moody's" shall mean any other national recognized rating agency (other than
S&P) that rates debt securities having a maturity at original issuance of at
least one year and that shall have been designated by the Trustee by a written
notice given to the Company.
21
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or cash equivalents received (including amounts received by way of sale or
discounting of any note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such Property) therefrom by
such Person, net of (i) all legal, title and recording taxes, expenses and
commissions and other fees and expenses (including appraisals, brokerage
commissions and investment banking fees) Incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Subsidiaries on any Debt which is secured by such Property in accordance
with the terms of any Lien upon or with respect to such Property or which must
by the terms of such Lien, or in order to obtain a necessary consent to such
Asset Disposition or by applicable law, be repaid out of the proceeds from such
Asset Disposition, (iii) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or Joint Ventures of such
Person as a result of such Asset Disposition and (iv) appropriate amounts to be
provided by such Person or any Subsidiary thereof, as the case may be, as a
reserve in accordance with generally accepted accounting principles against any
liabilities associated with such Property and retained by such Person or any
Subsidiary thereof, as the case may be, after such Asset Disposition, including
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, in each case
as determined by the board of directors of such Person, in its reasonable good
faith judgment evidenced by a Board Resolution filed with the Trustee; provided,
--------
however, that any reduction in such reserve within twelve months following the
-------
consummation of such Asset Disposition will be, for all purposes of this
Indenture and the Securities, treated as a new Asset Disposition at the time of
such reduction with Net Available Proceeds equal to the amount of such
reduction; provided further, however, that, in the event that any consideration
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for a transaction (which would otherwise constitute Net Available Proceeds) is
required to be held in escrow pending determination of whether a purchase price
adjustment will be made, at such time as such portion of the consideration is
released to such Person or its Restricted
22
Subsidiary from escrow, such portionshall be treated for all purposes of this
Indenture and the Securities as a new Asset Disposition at the time of such
release from escrow with Net Available Proceeds equal to the amount of such
portion of consideration released from escrow.
"New Convertible Notes" means the Company's 6% Convertible Subordinated
Notes due 2010 in an aggregate principal amount not to exceed $862,500,000.
"9 1/8% Senior Notes" means the Company's 9 1/8% Senior Notes due 2008
in an aggregate principal amount not to exceed $2,000,000,000, originally issued
on April 28, 1998.
"Non-Global Purchasers" has the meaning specified in Section 303.
"Offer" has the meaning specified in "Offer to Purchase" below.
23
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first-class mail, postage prepaid, to each Holder of Securities at
its address appearing in the Security Register on the date of the Offer offering
to purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Securities within five Business Days after
the Expiration Date. The Company shall notify the Trustee at least 15 Business
Days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company's obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make an
informed decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to this Indenture (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by applicable law to be included therein).
The Offer shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
24
a. the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
b. the Expiration Date and the Purchase Date;
c. the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100% of the Outstanding
Securities, the manner by which such has been determined pursuant to
the Section hereof requiring the Offer to Purchase) (the "Purchase
Amount");
d. the purchase price to be paid by the Company for $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
e. that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
f. the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
g. that any Securities not tendered or tendered but not purchased
by the Company will continue to accrue interest;
h. that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon, if any, shall cease
to accrue on and after the Purchase Date;
i. that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in
25
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing);
j. that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or the Paying Agent)
receives, not later than the close of business on the Expiration Date,
a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;
k. that (i) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (ii) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
--- ----
appropriate so that only Securities in denominations of $1,000
principal amount or integral multiples thereof shall be purchased); and
l. that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, the President
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the
26
Controller, the Secretary oran Assistant Secretary of the Company and delivered
to the Trustee, which shall comply with this Indenture.
"Opinion of Counsel" means an opinion of counsel acceptable to the
Trustee (who may be counsel to the Company, including an employee of the
Company).
"OECD" shall mean the Organization for Economic Cooperation and
Development.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) on and after any maturity date, Securities, or portions
thereof, for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that the Trustee or the Paying
--------
Agent, as applicable, is not prohibited from paying such money to the
Holders;
(iii) Securities, except to the extent provided in Sections
1202 and 1203, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands the Securities are valid obligations
of the Company;
27
provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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 Securities which any
Responsible Officer of the Trustee knows to be so owned or as to which the
Trustee has received written notice shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any)
or interest on any Securities on behalf of the Company.
"Permitted Holders" means the members of the Company's Board of
Directors on the Measurement Date and their respective estates, spouses,
ancestors, and lineal descendants, the legal representatives of any of the
foregoing and the trustees of any bona fide trusts of which the foregoing are
the sole beneficiaries or the grantors, or any Person of which the foregoing
"beneficially owns" (as defined in Rule 13d-3 under the Exchange Act) at least
66 2/3% of the total voting power of the Voting Stock of such Person.
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and not for purposes of
speculation and which,
28
in the case of an interest rate agreement, shall have anotional amount no
greater than the principal amount at maturity due with respect to the Debt being
hedged thereby.
"Permitted Investments" means (a) Cash Equivalents; (b) investments in
prepaid expenses; (c) negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits; (d)
loans, advances or extensions of credit to employees and directors made in the
ordinary course of business and consistent with past practice; (e) obligations
under Permitted Interest Rate or Currency Protection Agreements; (f) bonds,
notes, debentures and other securities received as a result of Asset
Dispositions pursuant to and in compliance with Section 1016; (g) Investments in
any Person as a result of which such Person becomes a Restricted Subsidiary; (h)
Investments made prior to the Measurement Date; (i) Investments made after the
Measurement Date in Persons engaged in the Telecommunications/IS Business in an
aggregate amount not to exceed Invested Capital; (j) solely in connection with
the defeasance of euro-denominated Debt permitted under this Indenture, European
Government Obligations; and (k) additional Investments in an aggregate amount
not to exceed $200,000,000.
"Permitted Liens" means (a) Liens for taxes, assessments, governmental
charges, levies or claims which are not yet delinquent or which are being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with generally
accepted accounting principles shall have been made therefor; (b) other Liens
incidental to the conduct of the Company's and its Restricted Subsidiaries'
businesses or the ownership of its Property not securing any Debt, and which do
not in the aggregate materially detract from the value of the Company's and its
Restricted Subsidiaries' Property when taken as a whole, or materially impair
the use thereof in the operation of its business; (c) Liens, pledges and
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of statutory obligations;
(d) Liens, pledges or deposits made to secure the performance of tenders, bids,
leases, public or statutory obligations, sureties, stays, appeals, indemnities,
performance or other
29
similar bonds and other obligations of like nature incurred in the ordinary
course of business (exclusive of obligations for the payment of borrowed money,
the obtaining of advances or credit or the payment of the deferred purchase
price of Property and which do not in the aggregate materially impair the use of
Property in the operation of the business of the Company and the Restricted
Subsidiaries taken as a whole); (e) zoning restrictions, servitudes, easements,
rights-of-way, restrictions and other similar charges or encumbrances incurred
in the ordinary course of business which, in the aggregate, do not materially
detract from the value of the Property subject thereto or materially interfere
with the ordinary conduct of the business of the Company or its Restricted
Subsidiaries; and (f) any interest or title of a lessor in the Property subject
to any lease other than a Capital Lease.
"Permitted Telecommunications Capital Asset Disposition" means the
transfer, conveyance, sale, lease or other disposition of optical fiber and/or
conduit and any related equipment used in a Segment (as defined) of the
Company's communications network that (i) constitute capital assets in
accordance with generally accepted accounting principles and (ii) after giving
effect to such disposition, would result in the Company retaining at least
either (A) 24 optical fibers per route mile on such Segment as deployed at the
time of such disposition or (B) 12 optical fibers and one empty conduit per
route mile on such Segment as deployed as such time. "Segment" means (x) with
respect to the Company's intercity network, the through-portion of such network
between two local networks (i.e., Omaha to Denver) and (y) with respect to a
local network of the Company (i.e., Dallas), the entire through-portion of such
network, excluding the spurs which branch off the through-portion.
"Person" means any individual, corporation, company, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Physical Security" has the meaning specified in Section 303.
30
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding-up of such Person, to shares of Capital
Stock of any other class of such Person.
"Preferred Stock Dividends" means all dividends with respect to
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory federal income rate (expressed as a
decimal number between 1 and 0) applicable to the issuer of such Preferred Stock
for the period during which such dividends were paid.
"Private Exchange Offer" means the offer by the Company, pursuant to
Section 2(f) of the Registration Agreement, to issue and deliver to certain
purchasers, in exchange for the Initial Securities held by such purchasers as
part of their initial distribution, a like aggregate principal amount of Private
Exchange Securities.
"Private Exchange Securities" means the Exchange Securities to be
issued pursuant to this Indenture in connection with a Private Exchange Offer
pursuant to the Registration Agreement.
"Private Placement Legend" means the third paragraph of the legend set
forth in the Securities in the form set forth in Exhibit A.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible,
31
including Capital Stock in, and other securities of, any other Person. For
purposes of any calculation required pursuant to this Indenture, the value of
any Property shall be its Fair Market Value.
"Proportionate Interest" in any issuance of Capital Stock of a
Restricted Subsidiary means a ratio (i) the numerator of which is the aggregate
amount of all Capital Stock of such Restricted Subsidiary beneficially owned by
the Company and the Restricted Subsidiaries and (ii) the denominator of which is
the aggregate amount of Capital Stock of such Restricted Subsidiary beneficially
owned by all Persons (excluding, in the case of this clause (ii), any Investment
made in connection with such issuance).
"Purchase Amount" has the meaning specified in "Offer to Purchase"
above.
"Purchase Date" has the meaning specified in "Offer to Purchase"
above.
"Purchase Money Debt" means Debt (including Acquired Debt and Capital
Lease Obligations, mortgage financings and purchase money obligations) incurred
for the purpose of financing all or any part of the cost of construction,
installation, acquisition, lease, development or improvement by the Company or
any Restricted Subsidiary of any Telecommunications/IS Assets of the Company or
any Restricted Subsidiary and including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as the same may be amended, supplemented, modified or restated from
time to time.
"Purchase Price" has the meaning specified in "Offer to Purchase"
above.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A.
"Qualified Receivable Facility" means Debt of the Company or any
Subsidiary Incurred from time to time pursuant to either (x) credit facilities
secured by Receivables or (y) Receivables purchase facilities, and including any
related notes, Guarantees, collateral
32
documents, instruments and agreements executed in connection therewith, as the
same may be amended, supplemented, modified or restated from time to time.
"Rating Agencies" means Moody's and S&P.
"Rating Date" means the earlier of the date of public notice of the
occurrence of a Change of Control or of the intention of the Company to effect a
Change of Control.
"Rating Decline" shall be deemed to have occurred if, no later than 90
days after the Rating Date (which period shall be extended so long as the rating
of the Securities is under publicly announced consideration for possible
downgrade by any of the Rating Agencies), either of the Rating Agencies assigns
or reaffirms a rating to the Securities that is lower than the applicable Issue
Date Rating (or the equivalent thereof). If, prior to the Rating Date, either of
the ratings assigned to the Securities by the Rating Agencies is lower than the
applicable Issue Date Rating, then a Rating Decline will be deemed to have
occurred if such rating is not changed by the 90th day following the Rating
Date. A downgrade within rating categories, as well as between rating
categories, will be considered a Rating Decline.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money and
proceeds and products thereof in each case generated in the ordinary course of
business.
"refinancing" has the meaning specified in Section 1010(b)(viii).
"Registered Exchange Offer" means the offer by the Company, pursuant
to the Registration Agreement, to certain Holders of Initial Securities, to
issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means the U.S. Registration Agreement dated
February 24, 2000, between the Company and the Initial Purchasers relating to
the Initial Securities.
33
"Registration Default" has the meaning specified in Exhibit A.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section
303.
"Required Filing Dates" has the meaning specified in Section 1007.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Trustee's Corporate Trust Office, including any vice
president, any assistant secretary, any assistant treasurer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Payment" has the meaning specified in Section 1012.
"Restricted Subsidiary" means (a) a Subsidiary of the Company or of a
Restricted Subsidiary that has not been designated or classified as an
Unrestricted Subsidiary pursuant to and in compliance with Section 1019 and (b)
an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary
pursuant to such Section.
"Restricted Subsidiary Guarantee" means a supplemental indenture to
this Indenture in substantially the form set forth in Exhibit B hereto,
providing for an unconditional Guarantee of payment in full of the principal of,
premium, if any, and interest on the Securities. Any such Restricted Subsidiary
Guarantee shall not be subordinate to any Debt of
34
the Restricted Subsidiary providing the Restricted Subsidiary Guarantee.
"Revocation" has the meaning specified in Section 1019.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Security" has the meaning specified in Section 303.
"S&P" means Standard & Poor's Ratings Service or, if Standard & Poor's
Ratings Service shall cease rating debt securities having a maturity at original
issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if Standard & Poor's Rating Service ceases rating debt securities having a
maturity at original issuance of at least one year and its ratings business with
respect thereto shall not have been transferred to any successor Person, then
"S&P" shall mean any other national recognized rating agency (other than
Moody's) that rates debt securities having a maturity at original issuance of at
least one year and that shall have been designated by the Trustee by a written
notice given to the Company.
"Sale and Leaseback Transaction" of any Person means any direct or
indirect arrangement pursuant to which any Property is sold or transferred by
such Person or a Restricted Subsidiary of such person and is thereafter leased
back from the purchaser or transferee thereof by such Person or one of its
Restricted Subsidiaries. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor act), and the rules and regulations thereunder (or respective
successors thereto).
35
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Statement" means a registration statement issued
by the Company in connection with the offer and sale of Initial Securities
pursuant to the Registration Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"6% Convertible Notes" means the Company's 6% Convertible Subordinated
Notes due 2009 in an aggregate principal amount not to exceed $823,000,000,
originally issued on September 14, 1999.
"Special Assets" means (a) the Capital Stock or assets of Cable
Michigan, Inc., RCN Corporation, Commonwealth Telephone Enterprises, Inc., KCP,
Inc. and California Private Transportation Company, L.P. (and any intermediate
holding companies or other entities formed solely for the purpose of owning such
Capital Stock or assets) owned, directly or indirectly, by the Company or any
Restricted Subsidiary on the Measurement Date, and (b) any Property, other than
cash, Cash Equivalents and Telecommunications/IS Assets, received as
consideration for the disposition after the Measurement Date of Special Assets
(as contemplated by the first proviso in Section 1016).
"Special Interest" has the meaning specified in Exhibit A.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to a Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable, including pursuant to any mandatory repurchase
provision (but excluding any provision providing for the repurchase of such
Security at the option of the
36
Holder thereof upon the happening of any contingency beyond the control of the
Company unless such contingency has occurred).
"Subordinated Debt" means Debt of the Company (a) that is not secured
by any Lien on or with respect to any Property now owned or acquired after the
Measurement Date and (b) as to which the payment of principal of (and premium,
if any) and interest and other payment obligations in respect of such Debt shall
be subordinate to the prior payment in full in cash of the Securities to at
least the following extent: (i) no payments of principal of (or premium, if any)
or interest on or otherwise due (including by acceleration or for additional
amounts) in respect of, or repurchases, redemptions or other retirements of,
such Debt (collectively, "payments of such Debt") may be permitted for so long
as any default (after giving effect to any applicable grace periods) in the
payment of principal (or premium, if any) or interest on the Securities exists,
including as a result of acceleration; (ii) in the event that any other Default
exists with respect to the Securities, upon notice by Holders of 25% or more in
aggregate principal amount of the Securities to the Trustee, the Trustee shall
have the right to give notice to the Company and the holders of such Debt (or
trustees or agents therefor) of a payment blockage, and thereafter no payments
of such Debt may be made for a period of 179 days from the date of such notice,
provided that not more than one such payment blockage notice may be given in any
--------
consecutive 360-day period, irrespective of the number of defaults with respect
to the Securities during such period; (iii) if payment of such Debt is
accelerated when any Securities are Outstanding, no payments of such Debt may be
made until three Business Days after the Trustee receives notice of such
acceleration and, thereafter, such payments may only be made to the extent the
terms of such Debt permit payment at that time; and (iv) such Debt may not (x)
provide for payments of principal of such Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Company
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity
37
of the Securities or (y) permit redemption or other retirement (including
pursuant to an offer to purchase made by the Company) of such other Debt at the
option of the holder thereof prior to the final Stated Maturity of the
Securities, other than, in the case of clause (x) or (y), any such payment,
redemption or other retirement (including pursuant to an offer to purchase made
by the Company) which is conditioned upon (A) a change of control of the Company
pursuant to provisions substantially similar to those described in Section 1009
(and which shall provide that such Debt will not be repurchased pursuant to such
provisions prior to the Company's repurchase of the Securities required to be
repurchased by the Company pursuant to the provisions described in Section 1009)
or (B) a sale or other disposition of assets pursuant to provisions
substantially similar to those described in Section 1016 (and which shall
provide that such Debt will not be repurchased pursuant to such provisions prior
to the Company's repurchase of the Securities required to be repurchased by the
Company pursuant to the provision described in Section 1016).
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Telecommunications/IS Assets" means (a) any Property (other than
cash, cash equivalents and securities) to be owned by the Company or any
Restricted Subsidiary and used in the Telecommunications/IS Business; (b) for
purposes of Sections 1010 and 1014 only, Capital Stock of any Person; or (c) for
all other purposes of this Indenture, Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary from any Person other than an
Affiliate of the Company; provided, however, that, in the case of clause (b) or
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(c), such Person is primarily engaged in the Telecommunications/IS Business.
38
"Telecommunications/IS 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 networks, related
network transmission equipment, software and other devices for use in a
communications business, (iii) computer outsourcing, data center management,
computer systems integration, reengineering of computer software for any purpose
(including, without limitation, for the purposes of porting computer software
from one operating environment or computer platform to another or to address
issues commonly referred to as "Year 2000 issues") or (iv) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in (i), (ii) or (iii) above; provided that the
--------
determination of what constitutes a Telecommunications/IS Business shall be made
in good faith by the Board of Directors.
"10 1/2% Senior Discount Notes" means the Company's 10 1/2% Senior
Discount Notes due 2008 in an aggregate principal amount at maturity not to
exceed $833,815,000, originally issued on November 24, 1998.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
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 such successor Trustee.
"Unrestricted Subsidiary" means (a) 91 Holding Corp.; (b) any
Subsidiary of an Unrestricted Subsidiary; and (c) any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 1019 and not
thereafter redesignated as a Restricted Subsidiary as permitted pursuant
thereto.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not
39
designated by a number or a word or words added before or after the title "vice
president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only for so long as
no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Voting Stock or other ownership interests (other
than directors' qualifying shares) of which shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
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 stating 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 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
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
40
(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 that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate 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 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.
41
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 (with
proper identification of each matter covered therein) 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 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; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(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 that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
42
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a 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 Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities 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 six months
after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. However, any such Holder or future Holder may revoke the request,
demand, authorization, direction, notice, consent, waiver or other Act of the
Holder as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date such Act becomes effective.
43
SECTION 105. Notices, etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company or such Guarantor addressed to it
(in the case of a Guarantor, in care of the Company) at the address of
the Company's principal office specified in the first paragraph of this
Indenture, or at any other address previously furnished in writing to
the Trustee by the Company.
44
SECTION 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice of any event to Holders
by the Company or the Trustee, such notice shall be given (unless
otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security 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.
Notices shall be effective only upon receipt. 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.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable 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 a sufficient giving of such notice for
every purpose hereunder.
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.
45
SECTION 109. Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 110. Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto, any
Paying Agent, any Security Registrar and their successors hereunder
and the Holders any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
SECTION 112. Conflict with Trust Indenture Act.
----------------------------------
The Trust Indenture Act shall apply as a matter of contract to
this Indenture for purposes of interpretation, construction and
defining the rights and obligations hereunder. If any provision hereof
limits, qualifies or conflicts with any provision of the Trust
Indenture Act or another provision which is required or deemed to be
included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture
Act shall control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 113. Legal Holidays.
---------------
46
In any case where any Interest Payment Date or Stated Maturity or
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of principal (or premium, if any) or interest need
not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date 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.
SECTION 114. No Personal Liability of Directors, Officers,
---------------------------------------------
Employees and Stockholders.
---------------------------
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Securities or
this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation, solely by reason of its status
as a director, officer, employee, incorporator or stockholder of the
Company or a Guarantor. By accepting a Security, each Holder waives
and releases all such liability (but only such liability). The waiver
and release are part of the consideration for issuance of the
Securities.
SECTION 115. Independence of Covenants.
--------------------------
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of a Default if
such action is taken or condition exists.
SECTION 116. Exhibits.
---------
All exhibits attached hereto are by this reference made a part
hereof with the same effect as if herein set forth in full.
47
SECTION 117. Counterparts.
-------------
This Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 118. Duplicate Originals.
--------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent
the same agreement.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
----------------
The Securities and the Trustee's certificate of authentication
with respect thereto shall be in substantially the form set forth in
Exhibit A hereto, 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
system on which the Securities may be listed or eligible for trading
or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
The definitive Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange or system on
which the Securities may be listed or eligible for trading, all as
determined by the officers of the Company executing such Securities,
as evidenced by their execution of such Securities.
48
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
----------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$800,000,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 304, 305, 306, 906, 1009 or 1016.
The Securities shall be known and designated as the "11% Senior
Notes Due 2008" of the Company. Their Stated Maturity shall be March
15, 2008, and they shall bear interest at the rate of 11% per annum
from February 29, 2000, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable on
September 15, 2000 and semiannually thereafter on March 15 and
September 15 in each year and at said Stated Maturity, until the
principal thereof is paid or duly provided for.
Principal of, premium, if any, and interest on the Securities will
be payable, and the Securities may be exchanged or transferred, at the
office or agency of the Company in The City of New York, which, unless
otherwise provided by the Company, will be the offices of the Trustee.
At the option of the Company, interest may be paid by check mailed to
addresses of the Persons entitled thereto as such addresses shall
appear on the Security Register.
The interest rate on the Securities is subject to increase by the
addition of Special Interest and otherwise, all as set forth or
referred to in the text of the Securities appearing in Exhibit A
hereto.
The Securities are not redeemable prior to maturity.
At the election of the Company, the entire Debt on the Securities
or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article
Twelve.
49
SECTION 302. Denominations.
--------------
The Securities will be issued without coupons and in fully
registered form only, in minimum denominations of $1,000 principal
amount and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal
reproduced thereon and attested by its Secretary or an Assistant
Secretary. The signature of any of these officers on the Securities
may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
Securities 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 Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such
50
Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
The Trustee shall authenticate and deliver (1) initially one or
more Global Securities for original issue in an aggregate principal
amount not to exceed $250,000,000 and (2) Exchange Securities for
issue only in a Registered Exchange Offer or a Private Exchange Offer
pursuant to the Registration Agreement, for a like principal amount of
Initial Securities, upon receipt of a Company Order, which shall
specify the amount of Securities to be authenticated, whether the
Securities are to be Initial Securities or Exchange Securities, the
date on which such Securities are to be authenticated and direct the
Trustee to authenticate such Securities.
Except as described below, the Securities will be deposited
with, or on behalf of, the Depository, and registered in the name of
Cede & Co. as the Depository's nominee in the form of a global note
certificate substantially in the form of Exhibit A (the "Rule 144A
Global Security"), for credit to the respective accounts of the
beneficial owners of the Securities represented thereby.
Securities transferred to persons outside the United States in
accordance with Regulation S under the Securities Act shall be
deposited with, or on behalf of, the Depository, and registered in the
name of Cede & Co. as the Depository's nominee in the form of one or
more global note certificates substantially in the form of Exhibit A
(each a "Regulation S Global Security"), for credit to the respective
accounts of the beneficial owners of the Securities represented
thereby, provided that upon such deposit all such Securities shall be
--------
credited to or through accounts maintained at the Depository by or on
behalf of the Euroclear System or Clearstream, societe anonyme.
Securities transferred to Institutional Accredited Investors
will be deposited with, or on behalf of, the Depository, and
registered in the name of Cede & Co. as the Depository's nominee in
the form of one or more global note certificates substantially in the
form of Exhibit A (each a "Institutional Accredited Investor Global
Security"), for credit to the respective accounts of the beneficial
owners of the Securities represented thereby.
51
Securities transferred to any persons who are not Qualified
Institutional Buyers or Institutional Accredited Investors (other than
persons outside the United States pursuant to sales or transfers in
accordance with Regulation S under the Securities Act) (collectively,
"Non-Global Purchasers") will be issued in registered definitive form
without coupons substantially in the form of Exhibit A (the "Physical
Securities"). Upon the transfer to a Qualified Institutional Buyer, an
Institutional Accredited Investor or to a person outside the United
States pursuant to a sale or transfer in accordance with Regulation S
under the Securities Act of Physical Securities initially issued to a
Non-Global Purchaser, such Physical Security will be exchanged for an
interest in a Global Security representing the principal amount of
Securities being transferred.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall
transfer, sell, lease, convey or otherwise dispose of all or
substantially all its assets to any other 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 which
shall have received a transfer, sale, lease, conveyance or other
disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of
the Securities authenticated or delivered prior to such consolidation,
merger, transfer, sale, lease, conveyance or other disposition may,
from time to time, at the request of the successor Person, be
exchanged for other Securities 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
Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Securities as specified in such request for
the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Securities, such successor Person, at
the option of the Holders but without expense to them, shall provide
for the exchange of all Securities at
52
the time Outstanding for Securities authenticated and delivered in
such new name.
SECTION 304. Temporary Securities.
---------------------
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and
------------------------------------------
Exchange.
---------
53
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as the
Company may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Security 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 Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the
"Security Registrar") for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denomination or
denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination and of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
54
Security 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 Securities, but the Company may require
payment of a sum sufficient to cover any transfer tax or other similar
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1009 or 1016 not involving any
transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
-------------------------------------
Securities.
-----------
If (i) any mutilated Security is surrendered to the Trustee or
(ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or
indemnity sufficient to save each of them harmless, then, in the
absence of actual notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax
or other similar governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the mutilated,
55
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided,
--------
however, that each installment of interest may at the Company's option
-------
be paid 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 in the Security Register.
Any interest on any Security 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 Regular
Record Date by virtue of such Holder having been a Holder on the
Regular Record Date, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company,
at its election in each case, as provided in paragraph (1) or (2)
below:
56
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date,
and in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided for 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 names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or system on which the Securities may be listed or
eligible for trading, and upon such notice as may be required by such
exchange or system, if, after notice given by the Company to the
Trustee of the proposed
57
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
----------------------
Prior to the due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security is 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.
-------------
58
All Securities surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures unless
by Company Order the Company shall direct that cancelled Securities be returned
to it.
SECTION 310. Computation of Interest.
------------------------
Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 311. CUSIP Number.
-------------
The Company in issuing the Securities may use a "CUSIP" number (if then
generally in use), and if so, the Trustee may use the CUSIP numbers in notices
of exchange as a convenience to Holders; provided, however, that any such notice
-------- -------
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities, and that reliance
may be placed only on the other identification numbers printed on the
Securities. The Company shall promptly notify the Trustee in writing of any
change in the CUSIP number of the Securities.
59
SECTION 312. Book-Entry Provisions for Global Securities.
--------------------------------------------
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be deposited with the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit A.
Members of, or participants in, the Depository ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
(i) 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 Depository or (ii) impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in a Rule 144A Global Security may be transferred
or exchanged for interests in an Institutional Accredited Investor Global
Security or a Regulation S Global Security, interests of beneficial owners in an
Institutional Accredited Investor Global Security may be transferred or
exchanged for interests in a Rule 144A Global Security or a Regulation S Global
Security and interests of beneficial owners in a Regulation S Global Security
may be transferred or exchanged for interests in a Rule 144A Global Security or
an Institutional Accredited Investor Global Security, in each case in accordance
with the rules and procedures of the Depository and the provisions of Section
313. Interests of beneficial owners in the Global Securities may be transferred
or exchanged for Physical Securities in accordance with the rules and procedures
of the Depository and the provisions of Section 313. In addition, Physical
Securities shall be transferred to all beneficial owners in
60
exchange for their beneficial interests in a Global Security if (i) the
Depository notifies the Company that it is unwilling or unable to continue as a
depository for such Global Security or if at any time the Depository ceases to
be a clearing agency registered under the Exchange Act, and a successor
depository is not appointed by the Company within 90 days, (ii) the Company
executes and delivers to the Trustee a notice that such Global Security shall be
so transferable, registrable and exchangeable, and such transfer shall be
registrable, or (iii) there shall have occurred and be continuing a Default or
Event of Default with respect to the Securities represented by such Global
Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical Securities
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and principal amount of authorized
denominations.
(d) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b), the Global Securities 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 Depository in exchange for its beneficial interest in
the Global Securities, an equal aggregate principal amount of Physical
Securities of like tenor of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in a
Global Security pursuant to paragraph (b) or (c) of this Section 312 shall,
except as otherwise provided by paragraph (d) of Section 313, bear the legend
regarding transfer restrictions applicable to the Physical Securities set forth
in Exhibit A.
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(f) The Holder of any Global Security 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 Securities.
(g) In the event that a Global Security is exchanged for Physical
Securities pursuant to this Section 312 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration Statement
with respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of Sections 312 and 313 (including the certification requirements set
forth on the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable exemption
from registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
SECTION 313. Special Transfer Provisions.
----------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors. The following
--------------------------------------------------------
provisions shall apply with respect to the registration of any proposed transfer
of a Security to any Institutional Accredited Investor which is not a QIB
(excluding transfers to non-U.S. persons):
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which is
two years (or such shorter period as may be prescribed by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later
of the original issue date of such Security (or of any Predecessor
Security) or three months after the last day on which the Company or any
Affiliate of the Company was the owner of such Security or any Predecessor
Security or (y) such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Security stating, or who
has otherwise advised the Company and the Security Registrar in writing,
that the transfer has been made to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
62
the Securities Act) and the proposed transferee has delivered to the
Security Registrar a certificate containing certain representations and
agreements (the form of which certificate can be obtained from the Trustee
or the Company).
(2) Subject to paragraph (1) above, if (i) the proposed transferee is
an Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Institutional Accredited Investor Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on the Security Register the date and an increase
in the principal amount of the Institutional Accredited Investor Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred, and (ii) the proposed transferor is an Agent
Member holding a beneficial interest in a Rule 144A Global Security or a
Regulation S Global Security, upon receipt by the Security Registrar of
instructions given in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect on its books
and records the date of such transfer and (A) a decrease in the principal
amount of such Rule 144A Global Security or Regulation S Global Security,
as the case may be, in an amount equal to the principal amount of the
beneficial interest in a Global Security to be transferred, and (B) an
increase in the principal amount of an Institutional Accredited Investor
Global Security in an amount equal to the principal amount to be
transferred.
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(b) Transfers to Non-U.S. Persons. The following provisions shall apply
------------------------------
with respect to the registration of any proposed transfer of a Security to any
non-U.S. person:
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which is
two years (or such shorter period as may be prescribed by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later
of the original issue date of such Security (or of any Predecessor
Security) or three months after the last day on which the Company or any
Affiliate of the Company was the owner of such Security or any Predecessor
Security or (y) such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Security stating, or who
has otherwise advised the Company and the Security Registrar in writing,
that the transfer has been made outside the U.S. in an offshore transaction
within the meaning of Regulation S in compliance with the exemption from
registration under the Securities Act provided by Rule 904 under the
Securities Act.
(2) Subject to paragraph (1) above, if (i) the proposed transferee is
an Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Regulation S Global Security, upon receipt by the Security Registrar of
instructions given in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect on the
Security Register the date and an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount of
the Physical Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred, and (ii) the proposed transferor is an
Agent Member holding a beneficial interest in a Rule 144A Global Security
or an Institutional Accredited Investor Global Security, upon receipt by
the Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date of such
64
transfer and (A) a decrease in the principal amount of such Rule 144A
Global Security or Institutional Accredited Investor Global Security, as
the case may be, in an amount equal to the principal amount to be
transferred and (B) an increase in the principal amount of a Regulation S
Global Security in an amount equal to the principal amount to be
transferred.
65
(c) Transfers to QIBs. The following provisions shall apply with respect
------------------
to the registration of any proposed transfer of a Security to any QIB (excluding
transfers to non-U.S. persons):
(1) The Security Registrar shall register the transfer of any
Security if (x) the requested transfer is not prior to that date which is
two years (or such shorter period as may be prescribed by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later
of the original issue date of such Security (or of any Predecessor
Security) or three months after the last day on which the Company or any
Affiliate of the Company was the owner of such Security or any Predecessor
Security or (y) such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Security stating, or who
has otherwise advised the Company and the Security Registrar in writing,
that the transfer has been made in compliance with the exemption from
registration under the Securities Act provided under Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that such transferee represents and warrants that it
is purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that each of it and
any such account is a QIB within the meaning of Rule 144A 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 it 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 foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
(2) Subject to paragraph (1) above, if (i) the proposed transferee is
an Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Rule 144A Global Security, upon receipt by the Security Registrar of
instructions given
66
in accordance with the Depository's and the Security Registrar's
procedures, the Security Registrar shall reflect on the Security Register
the date and an increase in the principal amount of the Rule 144A Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred, and (ii) the proposed transferor is an Agent
Member holding a beneficial interest in an Institutional Accredited
Investor Global Security or a Regulation S Global Security, upon receipt by
the Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date of such transfer
and (A) a decrease in the principal amount of such Institutional Accredited
Investor Global Security or Regulation S Global Security, as the case may
be, in an amount equal to the principal amount to be transferred and (B) an
increase in the principal amount of a Rule 144A Global Security in an
amount equal to the principal amount to be transferred.
(d) Private Placement Legend. (1) Upon the registration of transfer,
-------------------------
exchange or replacement of Securities, the Security Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the transfer or
exchange of Initial Securities contemplated by paragraph (d)(2) or (d)(3) below
has occurred or (ii) (x) the circumstances contemplated by clause (a)(1)(x),
(b)(1)(x) or (c)(1)(x) of this Section 313 exist and (y) there is delivered to
the Security Registrar and the Trustee 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.
(2) After a transfer of any Initial Securities during the period of
the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to legends on such Initial
Security will cease to apply, the requirements requiring that any such
Initial Security be issued in global form will cease to apply, and an
67
Initial Security in certificated or global form without legends will be
available to the transferee of the Holder of such Initial Securities upon
exchange of such transferring Holder's certificated Initial Security. Upon
the occurrence of any of the circumstances described in this paragraph, the
Company will deliver an Officers' Certificate to the Trustee instructing
the Trustee to issue Securities without legends.
(3) Upon the consummation of a Registered Exchange Offer with respect
to the Initial Securities pursuant to which certain Holders of such Initial
Securities are offered Exchange Securities (other than Private Exchange
Securities) in exchange for their Initial Securities, all requirements
pertaining to such Initial Securities that Initial Securities be issued in
global form will cease to apply, and certificated Initial Securities with
the Private Placement Legend will be available to Holders of such Initial
Securities that do not exchange their Initial Securities, and Exchange
Securities in certificated or global form will be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer. Upon
the occurrence of any of the circumstances described in this paragraph, the
Company will deliver an Officers' Certificate to the Trustee instructing
the Trustee to issue Securities without legends.
(4) Upon the consummation of a Private Exchange Offer with respect to
the Initial Securities pursuant to which Holders of such Initial Securities
are offered Private Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to such Initial Securities that
Initial Securities issued to certain Holders be issued in global form will
continue to apply, and Private Exchange Securities in global form will be
available to Holders that exchange such Initial Securities in such Private
Exchange Offer.
(e) Other Transfers. If a Holder proposes to transfer a Security pursuant
----------------
to any exemption from the registration requirements of the Securities Act other
than as provided for by Sections 313(a), 313(b) and 313(c) and other than
pursuant to Section 313(d)(4), the Security Registrar shall only register such
transfer or exchange if such transferor
68
delivers to the Security Registrar and the Trustee an Opinion of Counsel
satisfactory to the Company and the Security Registrar that such transfer is in
compliance with the Securities Act and the terms of this Indenture.
(f) General. By its acceptance of any Security bearing the Private
--------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or this Section
313 for a period of two years, during which time such letters, notices and other
written communications shall at the written request of the Company be delivered
to the Company. After retaining any such copies of letters, notices and other
written communications for a period of at least two years, all such copies may
be destroyed by the Trustee. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable prior written notice to the
Security Registrar.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall cease to be of further effect (subject to Section 1206
and except as to surviving rights of registration of transfer, transfer,
exchange and replacement of Securities expressly provided for herein or pursuant
hereto) 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 Outstanding Securities have been delivered to the
Trustee for cancellation; or
69
(b) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable within one year,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation,
for principal of (and premium, if any, on), and interest on, the
Securities to Maturity;
(2) the Company has paid or caused to be paid all other sums payable
by the Company hereunder; 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 under Sections 607 and 609 and, if money shall have been deposited
with the Trustee pursuant to clause (1)(b) of this Section 401, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
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SECTION 402. Application of Trust Money.
---------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest 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):
(1) failure to pay principal of (or premium, if any, on) any
Security when due; or
(2) failure to pay any interest on any Security when due,
continued for 30 days; or
(3) default in the payment of principal of (and premium, if any)
and interest on Securities required to be purchased pursuant to an
Offer to Purchase pursuant to Section 1009 when due and payable; or
(4) failure to perform or comply with the provisions of Section
801, 803 or 1016; or
(5) failure to perform any covenant or agreement of the Company
or any Guarantor in this Indenture or in any Security (other than a
covenant a default in whose performance is elsewhere in this Section
specifically
71
dealt with) continued for 60 days after written notice to the Company by
the Trustee or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities, which notice shall specify the default and state
that such notice is a "Notice of Default" hereunder; or
(6) default under the terms of any instrument evidencing or securing
Debt of the Company or any Restricted Subsidiary having an outstanding
principal amount of not less than $25,000,000 or its foreign currency
equivalent at the time which default results in the acceleration of the
payment of such indebtedness or constitutes the failure to pay such
indebtedness when due (after expiration of any applicable grace period); or
(7) the rendering of a judgment or judgments against the Company or
any Restricted Subsidiary in an aggregate amount in excess of $25,000,000
or its foreign currency equivalent at the time and shall not be waived,
satisfied or discharged for any period of 45 consecutive days during which
a stay of enforcement shall not be in effect; or
(8) any Restricted Subsidiary Guarantee ceases to be in full force
and effect (other than in accordance with the terms of such Restricted
Subsidiary Guarantee) or any Guarantor denies or disaffirms its obligations
under its Restricted Subsidiary Guarantee; or
(9) the entry of a decree or order by a court having jurisdiction in
the 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 the Federal Bankruptcy Code
or any other applicable federal, state or foreign law, or appointing a
receiver, liquidator, assignee, trustee, custodian or 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
72
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(10) 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 the Federal Bankruptcy Code or any other applicable
federal, state or foreign law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or other similar official) of the
Company or any Significant Subsidiary or of any substantial part of its
Property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default (other than an Event of Default specified in Section
501(9) or 501(10) with respect to the Company) shall occur and be continuing,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities may declare the principal amount of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount shall become immediately due and payable. If an Event of
Default specified in Section 501(9) or 501(10) occurs with respect to the
Company, the principal amount of all the Securities shall ipso facto become
---- -----
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
73
At any time after a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter provided in this Article Five, the Holders of a majority in
aggregate principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal at
the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of amounts of
principal of (or premium, if any, on) Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
--------
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when due, continued for 30 days, or
74
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security when due,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and 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 the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the 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 the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
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.
75
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
Securities or the Property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company for the payment of 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
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and 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 or 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 the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 607.
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 Securities
or the rights of any Holder thereof, or to
76
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
------------------------------------------------
Securities.
-----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and 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 and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article Five shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
--------------------
No Holder of any Securities shall have any right to institute any
proceeding with respect to this Indenture or for any other remedy hereunder,
unless
(1) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request
and offered reasonable indemnity to the Trustee to institute such
proceeding as trustee; and
(3) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Outstanding Securities a
direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
---------------------
Notwithstanding any other provision in this Indenture, including
Section 507, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Five 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.
79
SECTION 512. Control by Holders.
-------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided that
--------
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee that 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 not
consenting.
SECTION 513. Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all the Securities,
waive any past Default hereunder and its consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite majority have consented to such waiver and attaching
such consents upon which, subject to Section 104, the Trustee may conclusively
rely. Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 514. Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights
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and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity
reasonably satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 601.
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SECTION 602. Notice of Default.
------------------
If a Default occurs and is continuing, the Trustee shall transmit, in
the manner and to the extent provided in TIA Section 313(c), notice of such
Default within 60 days after it is known to any Responsible Officer of the
Trustee or written notice of it is received by the Trustee; provided, however,
-------- -------
that, except in the case of a Default in the payment of the principal of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, a trust committee of directors or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders.
The Trustee is not required to take notice or deemed to have notice of any
Event of Default with respect to the Securities, except an Event of Default
under Section 501(1), (2), (3) or (4) hereof (provided that in the case of
Section 501(4), such Event of Default constitutes a failure to purchase
Securities pursuant to an Offer to Purchase pursuant to Section 1016), unless
the Trustee shall have received written notice at its Corporate Trust Office
(which notice shall reference the Securities, the Company and the Indenture) of
such Event of Default from the Company or any Holder or unless a Responsible
Officer of the Trustee shall otherwise have knowledge thereof.
SECTION 603. Certain Rights of Trustee.
--------------------------
Subject to Section 601 and to the provisions of TIA Sections 315(a)
through 315(d):
(1) the Trustee may conclusively rely and shall be fully
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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a
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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, receive and rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee may act through counsel, agents, custodians and
nominees and shall not be responsible for the misconduct or negligence of
any such person appointed and supervised with due care and in good faith;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(7) 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; and
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(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.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities.
----------
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
--------------------
The Trustee, any Paying Agent, any Security Registrar 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 Securities 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, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. 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 the Trustee's negligence,
willful misconduct or bad faith; and
(3) to indemnify the Trustee and its directors, officers, employees
and agents for, and to hold them harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or bad faith on the
part of any of them, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself or themselves against any claim or liability in connection with the
exercise or performance of any of its or their powers or duties hereunder.
The obligations of the Company under this Section 607 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. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities 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 Securities.
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When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(9) or (10), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable federal, state or foreign bankruptcy, insolvency or other similar
law.
The provisions of this Section 607 shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests.
---------
(a) There shall be at all times a Trustee hereunder which shall be
subject to and comply with the provisions of Section 310(a)(1) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such Person 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 608, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time a Responsible Officer of the
Trustee shall have actual knowledge that the Trustee ceases to be eligible in
accordance with the provisions of this Section 608, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six.
(b) The Trustee shall be subject to and comply with Section 310(b) of
the Trust Indenture Act.
SECTION 609. 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 Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
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(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with 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 Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608(a) 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 Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board
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Resolution, shall promptly appoint a successor Trustee. If the Company does not
promptly appoint a successor Trustee after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities delivered to the Company and the retiring Trustee. In
either case, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
(g) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
SECTION 610. Acceptance of Appointment by Successor.
---------------------------------------
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Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, 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. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
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SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
------------------------------------------------------------
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder; provided that such Person shall be
--------
otherwise qualified and eligible under this Article Six, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion,
consolidation or transfer of assets to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities 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 and effect which this Indenture
provides that the certificate of authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
-------- -------
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion, consolidation or transfer of assets.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
---------------------------------------------
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Every Holder of Securities, 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).
SECTION 702. Reports by Trustee.
-------------------
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities, the Trustee shall transmit to the
Holders, 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).
A copy of each such report at the time of its mailing to Holders shall be
filed with the Commission and the principal national securities exchange (if
any) on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if the
Securities become listed on any national securities exchange or of any delisting
thereof.
SECTION 703. Reports by Company.
-------------------
The Company shall file with the Trustee and deliver to the Holders of
Securities the reports and other information required to be provided by it
pursuant to Section 1007.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not, in a single transaction or a series of related
transactions, (i) consolidate with or merge into any other Person or Persons or
permit any other Person to consolidate with or merge into the Company or (ii)
directly or indirectly, transfer, sell, lease, convey or otherwise dispose of
all or substantially all its assets to any other Person or Persons, unless:
(1) in a transaction in which the Company is not the surviving Person
or in which the Company transfers, sells, leases, conveys or otherwise
disposes of all or substantially all of its assets to any other Person, the
resulting, surviving or transferee Person (the "successor entity") is
organized under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under this
Indenture;
(2) immediately before and after giving effect to such transaction
and treating any Debt which becomes an obligation of the Company (or the
successor entity) or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such Restricted
Subsidiary at the time of the transaction, no Default or Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company (or the successor entity) is equal to
or greater than that of the Company immediately prior to the transaction;
(4) immediately after giving effect to such transaction and treating
any Debt which becomes an obligation of the Company (or the successor
entity) or
93
a Restricted Subsidiary as a result of such transaction as having been
Incurred by the Company or such Restricted Subsidiary at the time of the
transaction, the Company (or the successor entity) could Incur at least
$1.00 of additional Debt pursuant to the provisions of paragraph (a) of
Section 1010;
(5) if, as a result of any such transaction, Property of the Company
(or the successor entity) or any Restricted Subsidiary would become subject
to a Lien prohibited by the provisions of Section 1014, the Company (or the
successor entity) shall have secured the Securities as required by said
covenant;
(6) in the case of a transfer, sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company, such
assets shall have been transferred as an entirety or virtually as an
entirety to one Person and such Person shall have complied with all the
provisions of this paragraph; and
(7) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each in form and substance reasonably
satisfactory to the Trustee, stating that such consolidation, merger,
transfer, sale, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with, and, with respect to such Officers' Certificate,
setting forth the manner of determination of the Consolidated Net Worth, in
accordance with clause (3) of this Section 801, of the Company or, if
applicable, of the successor entity as required pursuant to the foregoing.
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SECTION 802. Successor Company Substituted.
------------------------------
Upon any consolidation of the Company with or merger of the Company with or
into any other Person or any transfer, sale, lease, conveyance or other
disposition of all or substantially all the assets of the Company to any Person
or Persons in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such transfer,
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and the predecessor Company (which term shall for this
purpose mean the Person named as the "Company" in the first paragraph of this
Indenture or any successor Person which shall have become such in the manner
described in Section 801), except in the case of a lease, shall be released from
all its obligations and covenants under this Indenture and the Securities and
may be dissolved and liquidated.
SECTION 803. Guarantor May Consolidate, etc., Only on Certain Terms.
-------------------------------------------------------
The Company shall not permit any Guarantor to, in a single transaction
or a series of related transactions, (i) consolidate with or merge into any
other Person or Persons (other than the Company or another Guarantor) or permit
any other Person (other than the Company or another Guarantor) to consolidate
with or merge into such Guarantor or (ii) directly or indirectly, transfer,
sell, lease, convey or otherwise dispose of all or substantially all its assets
to any other Person or Persons (other than the Company or another Guarantor),
unless:
(1) in a transaction in which such Guarantor is not the surviving
Person or in which such Guarantor transfers, sells, leases, conveys or
otherwise disposes of all or substantially all of its assets to any other
Person, the resulting, surviving or transferee Person (the "successor
guarantor") is organized under the laws of the United States of America or
any State thereof or the District of Columbia and shall expressly assume,
by a supplemental indenture executed and delivered to the
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Trustee in form satisfactory to the Trustee, all of such Guarantor's
obligations under this Indenture;
(2) immediately before and after giving effect to such transaction and
treating any Debt which becomes an obligation of the Company or a
Restricted Subsidiary (including the successor guarantor) as a result of
such transaction as having been Incurred by the Company or such Restricted
Subsidiary at the time of the transaction, no Default or Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company is equal to or greater than that of
the Company immediately prior to the transaction;
(4) immediately after giving effect to such transaction and treating
any Debt which becomes an obligation of the Company or a Restricted
Subsidiary (including the successor guarantor) as a result of such
transaction as having been Incurred by the Company or such Restricted
Subsidiary at the time of the transaction, the Company could Incur at least
$1.00 of additional Debt pursuant to the provisions of paragraph (a) of
Section 1010;
(5) if, as a result of any such transaction, Property of the Company
or any Restricted Subsidiary (including the successor guarantor) would
become subject to a Lien prohibited by the provisions of Section 1014, the
Company shall have secured the Securities as required by said covenant;
(6) in the case of a transfer, sale, lease, conveyance or other
disposition of all or substantially all of the assets of such Guarantor,
such assets shall have been transferred as an entirety or virtually as an
entirety to one Person and such Person shall have complied with all the
provisions of this paragraph; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance
reasonably satisfactory to the Trustee, stating that such consolidation,
merger,
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transfer, sale, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with, and, with respect to such Officers' Certificate,
setting forth the manner of determination of the Consolidated Net Worth, in
accordance with clause (3) of this Section 803, of such Guarantor or, if
applicable, of the successor guarantor as required pursuant to the
foregoing.
SECTION 804. Successor Guarantor Substituted.
--------------------------------
Upon any consolidation of a Guarantor with or merger of a Guarantor with or
into any other Person or any transfer, sale, lease, conveyance or other
disposition of all or substantially all the assets of a Guarantor to any Person
or Persons in accordance with Section 803, the successor Person formed by such
consolidation or into which such Guarantor is merged or to which such transfer,
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, such Guarantor under
this Indenture with the same effect as if such successor Person had been named
as a Guarantor herein, and the predecessor Guarantor (which term shall for this
purpose mean the Person named as the "New Guarantor" in the first paragraph of
the applicable supplemental indenture or any successor Person which shall have
become such in the manner described in Section 803), except in the case of a
lease, shall be released from all its obligations and covenants under its
Restricted Subsidiary Guarantee and the Securities and may be dissolved and
liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
The Company and the Trustee may, at any time and from time to time, without
notice to or consent of any Holders of Securities, enter into one or more
indentures supplemental hereto:
(1) to evidence the succession of another Person to the Company or a
Guarantor and the assumption by such successor of the covenants of the
Company or such Guarantor herein and in the Securities; or
(2) to add to the covenants of the Company, for the benefit of the
Holders, or to surrender any right or power conferred upon the Company
hereby; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a successor Trustee pursuant to the requirements of Section
610; or
(6) to secure the Securities; or
(7) to comply with the Trust Indenture Act or the Securities Act
(including Regulation S promulgated thereunder); or
(8) to add additional Guarantees with respect to the Securities or to
release Guarantors from Restricted Subsidiary Guarantees as provided by the
terms of this Indenture; or
(9) to cure any ambiguity herein, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to add any other provision with respect to matters or
98
questions arising under this Indenture; provided such actions shall not
--------
adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of such Holders delivered to the
Company and the Trustee, the Company and the Trustee may enter into one or more
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
waiving or otherwise modifying in any manner the rights of the Holders, provided
--------
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
interest thereon that would be due and payable upon the Stated Maturity
thereof, or change the place of payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof; or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is necessary for any such
supplemental indenture or required for any waiver of compliance with
certain provisions of this Indenture or certain Defaults hereunder; or
(3) subordinate in right of payment, or otherwise subordinate, the
Securities to any other Debt; or
(4) except as otherwise provided herein, release any security interest
that may have been granted in favor of the Holders of the Securities; or
(5) reduce the premium payable upon a Change of Control Triggering
Event or, at any time after a Change
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of Control Triggering Event has occurred, change the time at which the
Offer to Purchase relating thereto must be made or at which the Securities
must be repurchased pursuant to such Offer to Purchase; or
(6) at any time after the Company is obligated to make an Offer to
Purchase with the Net Available Proceeds from Asset Dispositions, change
the time at which such Offer to Purchase must be made or at which the
Securities must be repurchased pursuant thereto; or
(7) make any change in any Restricted Subsidiary Guarantee that would
adversely affect the Holders of the Securities; or
(8) modify any provision of this Section 902 (except to increase any
percentage set forth herein).
It shall not be necessary for any Act of Holders under this Section 902 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 Nine 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 and an Officers' Certificate stating that all
conditions precedent to the execution of such supplemental indenture have been
fulfilled. 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 Nine,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this Article Nine shall
conform as a matter of contract or law to the requirements of the Trust
Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may bear a notation in form
approved by the Trustee and the Company as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 907. Notice of Supplemental Indentures.
----------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Article Nine, the Company shall give
notice thereof to the Holders of each Outstanding Security 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 that it
shall duly and punctually pay the principal of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
--------------------------------
The Company shall maintain in The City of New York an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such
office or agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. The Company shall
give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities 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
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rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of
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any such designation or rescission and any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of the principal of (or premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of (or 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 shall promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company shall 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 1003,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee,
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forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) indemnify the Trustee and its officers, directors, employees and
agents against any loss, cost or liability caused by, or incurred as a
result of, such Paying Agent's acts or omissions.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, premium 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 Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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SECTION 1004. Corporate Existence.
--------------------
Subject to Article Eight, the Company shall 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
Subsidiary of the Company; provided, however, that the Company shall not be
-------- -------
required to preserve, with respect to the Company, any such right or franchise
or, with respect to any such Subsidiary (subject to all the other covenants in
this Indenture), any such corporate existence, right or franchise, if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries as
a whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 1005. Maintenance of Properties.
--------------------------
The Company shall cause all 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 and supplied with all necessary equipment
and shall 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 1005 shall prevent the Company 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
Subsidiary and not disadvantageous in any material respect to the Holders.
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SECTION 1006. Insurance.
----------
The Company shall at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the extent
that property of similar character is usually so insured by companies similarly
situated and owning like properties.
SECTION 1007. Reports.
--------
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the Company
were subject thereto, such documents to be filed with the Commission on or prior
to the respective dates (the "Required Filing Dates") by which the Company would
have been required to file them. The Company shall also in any event (a) within
15 days of each Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register, without cost to such
Holders, and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents (without exhibits) which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act or any successor provisions thereto if the Company were subject
thereto and (b) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request, supply
copies of such documents (without exhibits) to any prospective Holder.
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SECTION 1008. Statement by Officers as to Default.
------------------------------------
(a) The Company shall deliver to the Trustee, on the date of delivery
of each annual report to be delivered pursuant to Section 1007, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance during the period covered by such report with all conditions and
covenants under this Indenture. If the signer has knowledge of any noncompliance
that occurred during such period, the certificate shall describe its status and
what action the Company has taken or is taking or proposes to take with respect
thereto. For purposes of this Section 1008(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 Debt of
the Company or any Restricted Subsidiary gives any notice or takes any other
action with respect to a claimed default (other than with respect to Debt in the
principal amount of less than $25,000,000 or its foreign currency equivalent at
the time), the Company shall, within 30 days of such occurrence, notice or other
action, 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, its status and what action the Company is taking or
purposes to take with respect thereto.
SECTION 1009. Change of Control Triggering Event.
-----------------------------------
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require that the Company repurchase such Holder's
Securities in whole or in part in integral multiples of $1,000, in accordance
with the procedures set forth in this Section 1009 and this Indenture.
(b) Within 30 days of the occurrence of both a Change of Control and
a Rating Decline with respect to the Securities (a "Change of Control Triggering
Event"), the Company will be required to make an Offer to Purchase all
Outstanding Securities at a price in cash equal to 101% of
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the principal amount of the Securities on the purchase date, plus accrued and
unpaid interest (if any) to such purchase date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date).
(c) The Company and the Trustee shall perform their respective
obligations for the Offer to Purchase as specified in the Offer. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) irrevocably deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) money sufficient to pay the Purchase Price
of all Securities or portions thereof so accepted (provided that such deposit
may be made no later than 11:00 A.M. New York City time on the Purchase Date if
the Company elects) and (iii) deliver or cause to be delivered to the Trustee
all Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Purchase Price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. In the event
that the aggregate Purchase Price is less than the amount delivered by the
Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as
the case may be, shall deliver the excess to the Company immediately after the
Purchase Date.
(d) A "Change of Control" means the occurrence of any of the
following events:
108
(i) if any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a
person will be deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly
or indirectly, of 35% or more of the total voting power of the Voting
Stock of the Company; provided, however, that the Permitted Holders
-------- -------
are the "beneficial owners" (as defined in Rule 13d-3 under the
Exchange Act, except that a person will be deemed to have "beneficial
ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, in the aggregate of a
lesser percentage of the total voting power of the Voting Stock of the
Company than such other person or group (for purposes of this clause
(i), such person or group shall be deemed to beneficially own any
Voting Stock of a corporation (the "specified corporation") held by
any other corporation (the "parent corporation") so long as such
person or group beneficially owns, directly or indirectly, in the
aggregate a majority of the total voting power of the Voting Stock of
such parent corporation); or
(ii) the sale, transfer, assignment, lease, conveyance or
other disposition, directly or indirectly, of all or substantially all
the assets of the Company and the Restricted Subsidiaries, considered
as a whole (other than a disposition of such assets as an entirety or
virtually as an entirety to a Wholly Owned Restricted Subsidiary or
one or more Permitted Holders) shall have occurred; or
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any
109
new directors whose election or appointment by such board or whose
nomination for election by the shareholders of the Company was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then
in office; or
(iv) the shareholders of the Company shall have approved any
plan of liquidation or dissolution of the Company.
(e) The Company shall not be required to make an Offer to Purchase
upon a Change of Control Triggering Event if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase made
by the Company and purchases all Securities validly tendered and not withdrawn
under such Offer to Purchase.
(f) In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 1010. Limitation on Consolidated Debt.
--------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Debt, unless, after giving pro
forma effect to such Incurrence and the receipt and application of the net
proceeds thereof, no Default or Event of Default would occur as a consequence of
such Incurrence or be continuing following such Incurrence and either (i) the
ratio of (A) the aggregate consolidated principal amount (or, in the case of
Debt issued at a discount, the then-Accreted Value) of Debt of the Company and
its Restricted Subsidiaries outstanding as of the most recent available
quarterly or annual balance sheet, after giving pro forma effect to the
Incurrence of such Debt and any other Debt Incurred or repaid since such balance
sheet date and the receipt and application of the net proceeds thereof, to (B)
Consolidated Cash Flow Available for Fixed Charges for the four full fiscal
quarters next preceding the Incurrence of such Debt for which consolidated
financial statements are available, would be less than 5.0 to 1.0, or (ii) the
Company's Consolidated Capital Ratio as of the most recent available quarterly
or annual balance sheet, after giving pro forma effect to (x) the Incurrence of
such Debt and any other Debt Incurred or repaid since such balance sheet date,
(y) the issuance of any Capital Stock (other than Disqualified Stock) of the
Company since such balance sheet date, including the issuance of any Capital
Stock to be issued concurrently with the Incurrence of such Debt, and (z) the
receipt and application of the net proceeds of such Debt or Capital Stock, as
the case may be, is less than 2.25 to 1.0.
(b) Notwithstanding the foregoing limitation, the Company or any
Restricted Subsidiary may Incur any and all of the following (each of which
shall be given independent effect):
(i) Debt under the Securities, this Indenture or any Restricted
Subsidiary Guarantee;
(ii) Debt under Credit Facilities in an aggregate principal
amount outstanding or available (together with all refinancing Debt
outstanding or available pursuant to clause (viii) below in respect of
Debt previously Incurred pursuant to this clause (ii)) at
111
any one time not to exceed the greater of (x) $750,000,000, which
amount shall be permanently reduced by the amount of Net Available
Proceeds used to repay Debt under the Credit Facilities, and not
reinvested in Telecommunications/IS Assets or used to purchase
Securities or repay other Debt, pursuant to and as permitted by
Section 1016, and (y) 85% of the Eligible Receivables;
(iii) Purchase Money Debt, provided that the amount of such
--------
Purchase Money Debt does not exceed 100% of the cost of the
construction, installation, acquisition, lease, development or
improvement of the applicable Telecommunications/IS Assets;
(iv) Subordinated Debt of the Company; provided, however, that
-------- -------
the aggregate principal amount (or, in the case of Debt issued at a
discount, the Accreted Value) of such Debt, together with any other
outstanding Debt Incurred pursuant to this clause (iv), shall not
exceed $500,000,000 at any one time (which amount shall be permanently
reduced by the amount of Net Available Proceeds used to repay
Subordinated Debt of the Company, and not reinvested in
Telecommunications/IS Assets or used to purchase Securities or repay
other Debt, pursuant to and as permitted by Section 1016), except to
the extent such Debt in excess of $500,000,000 (A) is subordinated to
all other Debt of the Company other than Debt Incurred pursuant to
this clause (iv) in excess of such $500,000,000 limitation, (B) does
not provide for the payment of cash interest on such Debt prior to the
Stated Maturity of the Securities and (C) (1) does not provide for
payments of principal of such Debt at stated maturity or by way of a
sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including
any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by
virtue of the acceleration of any payment with respect to such Debt
upon any event of default thereunder), in each case on or prior to the
Stated Maturity of the Securities, and (2) does not permit redemption
or other retirement (including pursuant to an offer to purchase
112
made by the Company but excluding through conversion into Capital
Stock of the Company, other than Disqualified Stock, without any
payment by the Company or its Restricted Subsidiaries to the holders
thereof other than in respect of fractional shares) of such Debt at
the option of the holder thereof on or prior to the Stated Maturity of
the Securities;
(v) Debt outstanding on the Measurement Date;
(vi) Debt owed by the Company to any Restricted Subsidiary of
the Company or Debt owed by a Restricted Subsidiary of the Company to
the Company or a Restricted Subsidiary of the Company; provided,
--------
however, that (x) upon the transfer, conveyance or other disposition
-------
by such Restricted Subsidiary or the Company of any Debt so permitted
to a Person other than the Company or another Restricted Subsidiary of
the Company or (y) if for any reason such Restricted Subsidiary ceases
to be a Restricted Subsidiary, the provisions of this clause (vi)
shall no longer be applicable to such Debt and such Debt shall be
deemed to have been Incurred by the issuer thereof at the time of such
transfer, conveyance or other disposition or when such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(vii) Debt Incurred by a Person prior to the time (A) such
Person became a Restricted Subsidiary, (B) such Person merges into or
consolidates with a Restricted Subsidiary or (C) another Restricted
Subsidiary merges into or consolidates with such Person (in a
transaction in which such Person becomes a Restricted Subsidiary),
which Debt was not Incurred in anticipation of such transaction and
was outstanding prior to such transaction;
(viii) Debt Incurred to renew, extend, refinance, defease, repay,
prepay, repurchase, redeem, retire, exchange or refund (each, a
"refinancing") Debt Incurred pursuant to clause (i), (ii), (iii), (v),
(vii) or (xii) of this paragraph (b) or this clause (viii), in an
aggregate principal amount (or if issued at a discount, the then-
Accreted Value) not to exceed the aggregate principal amount (or if
issued at
113
a discount, the then-Accreted Value) of and accrued interest on the
Debt so refinanced plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the Debt
so refinanced or the amount of any premium reasonably determined by
the Board of Directors as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated repurchase, plus the
expenses of the Company Incurred in connection with such refinancing;
provided, however, that (A) the refinancing Debt shall not be senior
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in right of payment to the Debt that is being refinanced and (B) in
the case of any refinancing of Debt Incurred pursuant to clause (i),
(v), (vii) or (xii) or, if such Debt previously refinanced Debt
Incurred pursuant to any such clause, this clause (viii), the
refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (x) does not provide
for payments of principal of such Debt at stated maturity or by way of
a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is
contingent upon events or circumstances, but excluding any retirement
required by virtue of the acceleration of any payment with respect to
such Debt upon any event of default thereunder), in each case prior to
the time the same are required by the terms of the Debt being
refinanced and (y) does not permit redemption or other retirement
(including pursuant to an offer to purchase made by the Company) of
such Debt at the option of the holder thereof prior to the time the
same are required by the terms of the Debt being refinanced, other
than, in the case of clause (x) or (y), any such payment, redemption
or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which
is conditioned upon a change of control pursuant to provisions
substantially similar to those described under Section 1009;
(ix) Debt (A) in respect of performance, surety or appeal bonds,
Guarantees, letters of credit or reimbursement obligations Incurred
or provided in the ordinary course of business securing the
performance of
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contractual, franchise, lease, self-insurance or license obligations
and not in connection with the Incurrence of Debt or (B) in respect of
customary agreements providing for indemnification, adjustment of
purchase price after closing, or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds
securing any such obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, Incurred in connection with
the disposition of any business, assets or Restricted Subsidiary of
the Company (other than Guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or
Restricted Subsidiary of the Company for the purpose of financing such
acquisition) and in an aggregate principal amount not to exceed the
gross proceeds actually received by the Company or any Restricted
Subsidiary in connection with such disposition;
(x) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(xi) Debt not otherwise permitted to be Incurred pursuant to
clauses (i) through (x) above or clause (xii) below, which, together
with any other outstanding Debt Incurred pursuant to this clause (xi),
has an aggregate principal amount not in excess of $50,000,000 at any
time outstanding; and
(xii) Issue Date Purchase Money Debt and Debt under the
Existing Notes, the New Convertible Notes, the Dollar Notes, the Euro
Notes and the related indentures and any restricted subsidiary
Guarantees issued in accordance with such related indentures.
(c) Notwithstanding any other provision of this Section 1010, the
maximum amount of Debt that the Company or a Restricted Subsidiary may Incur
pursuant to this Section 1010 shall not be deemed to be exceeded due solely to
the result of fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of Debt under
this Section 1010, (i) Guarantees, Liens or obligations with respect to letters
of credit supporting
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Debt otherwise included in the determination of such particular amount shall not
be included and (ii) any Liens granted for the benefit of the Securities
pursuant to the provisions referred to in the first paragraph of Section 1014
shall not be treated as Debt. For purposes of determining any particular amount
of Debt under this Section 1010, if any such Debt denominated in a different
currency is subject to a currency agreement that constitutes a Permitted
Interest Rate or Currency Protection Agreement with respect to U.S. dollars
covering all principal of, premium, if any, and interest payable on such Debt,
the amount of such Debt expressed in U.S. dollars will be as provided in such
currency agreement. For purposes of determining compliance with this Section
1010, in the event that an item of Debt meets the criteria of more than one of
the types of Debt described in the above clauses, the Company, in its sole
discretion, shall classify such item of Debt and only be required to include the
amount and type of such Debt in one of such clauses.
SECTION 1011. Limitation on Debt of Restricted Subsidiaries.
----------------------------------------------
The Company shall not permit any Restricted Subsidiary that is not a
Guarantor to Incur any Debt except any and all of the following (each of which
shall be given independent effect):
(i) Restricted Subsidiary Guarantees;
(ii) Debt outstanding on the Measurement Date;
(iii) Debt of Restricted Subsidiaries under Credit Facilities
permitted to be Incurred pursuant to clause (ii) of paragraph (b) of
Section 1010;
(iv) Purchase Money Debt of Restricted Subsidiaries permitted
to be Incurred pursuant to clause (iii) of paragraph (b) of Section
1010;
(v) Debt owed by a Restricted Subsidiary to the Company or a
Restricted Subsidiary of the Company permitted to be Incurred pursuant
to clause (vi) of paragraph (b) of Section 1010;
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(vi) Debt of Restricted Subsidiaries consisting of Permitted
Interest Rate or Currency Protection Agreements permitted to be
Incurred pursuant to clause (x) of paragraph (b) of Section 1010;
(vii) Debt of Restricted Subsidiaries permitted to be
Incurred under clause (vii) of paragraph (b) of Section 1010 or Issue
Date Purchase Money Debt permitted to be Incurred under clause (xii) of
paragraph (b) of Section 1010;
(viii) Debt of Restricted Subsidiaries permitted to be
Incurred under clause (ix) or (xi) of paragraph (b) of Section 1010;
and
(ix) Debt which is Incurred to refinance any Debt of a
Restricted Subsidiary permitted to be Incurred pursuant to clauses (i),
(ii), (iii), (iv) and (vii) of this paragraph or this clause (ix), in
an aggregate principal amount (or if issued at a discount, the then-
Accreted Value) not to exceed the aggregate principal amount (or if
issued at a discount, the then-Accreted Value) of the Debt so
refinanced, plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Debt so
refinanced or the amount of any premium reasonably determined by the
Board of Directors as necessary to accomplish such refinancing by means
of a tender offer or privately negotiated repurchase, plus the amount
of expenses of the Company and the applicable Restricted Subsidiary
Incurred in connection therewith; provided, however, that, in the case
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of any refinancing of Debt Incurred pursuant to clause (i), (ii) or
(vii) or, if such Debt previously refinanced Debt Incurred pursuant to
any such clause, this clause (ix), the refinancing Debt by its terms,
or by the terms of any agreement or instrument pursuant to which such
Debt is Incurred, (x) does not provide for payments of principal at the
stated maturity of such Debt or by way of a sinking fund applicable to
such Debt or by way of any mandatory redemption, defeasance, retirement
or repurchase of such Debt by the Company or any Restricted Subsidiary
(including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by
virtue of
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acceleration of such Debt upon an event of default thereunder), in
each case prior to the time the same are required by the terms of the
Debt being refinanced and (y) does not permit redemption or other
retirement (including pursuant to an offer to purchase made by the
Company or a Restricted Subsidiary) of such Debt at the option of the
holder thereof prior to the stated maturity of the Debt being
refinanced, other than, in the case of clause (x) or (y), any such
payment, redemption or other retirement (including pursuant to an
offer to purchase made by the Company or a Restricted Subsidiary)
which is conditioned upon the change of control of the Company
pursuant to provisions substantially similar to those contained in
Section 1009.
Notwithstanding any other provision of this Section 1011, the maximum
amount of Debt that a Restricted Subsidiary may Incur pursuant to this Section
1011 shall not be deemed to be exceeded due solely as the result of fluctuations
in the exchange rates of currencies.
For purposes of determining any particular amount of Debt under this
Section 1011, Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such particular
amount shall not be included. For purposes of determining compliance with this
Section 1011, in the event that an item of Debt meets the criteria of more than
one of the types of Debt described in the above clauses, the Company, in its
sole discretion, shall classify such item of Debt and only be required to
include the amount and type of such Debt in one of such clauses.
SECTION 1012. Limitation on Restricted Payments.
----------------------------------
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(a) The Company (i) shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, declare or pay any dividend, or make any
distribution, in respect of its Capital Stock or to the holders thereof,
excluding any dividends or distributions which are made solely to the Company or
a Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly
Owned Subsidiary, to the other stockholders of such Restricted Subsidiary on a
pro rata basis or on a basis that results in the receipt by the Company or a
Restricted Subsidiary of dividends or distributions of greater value than it
would receive on a pro rata basis) or any dividends or distributions payable
solely in shares of Capital Stock of the Company (other than Disqualified Stock)
or in options, warrants or other rights to acquire Capital Stock of the Company
(other than Disqualified Stock); (ii) shall not, and shall not permit any
Restricted Subsidiary to, purchase, redeem, or otherwise retire or acquire for
value (x) any Capital Stock of the Company or any Restricted Subsidiary of the
Company or (y) any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company or any Restricted Subsidiary or any securities
convertible or exchangeable into shares of Capital Stock of the Company or any
Restricted Subsidiary, except, in any such case, any such purchase, redemption
or retirement or acquisition for value (A) paid to the Company or a Restricted
Subsidiary (or, in the case of any such purchase, redemption or other retirement
or acquisition for value with respect to a Restricted Subsidiary that is not a
Wholly Owned Subsidiary, to the other stockholders of such Restricted Subsidiary
on a pro rata basis or on a basis that results in the receipt by the Company or
a Restricted Subsidiary of payments of greater value than it would receive on a
pro rata basis) or (B) paid solely in shares of Capital Stock (other than
Disqualified Stock) of the Company; (iii) shall not make, or permit any
Restricted Subsidiary to make, any Investment (other than an Investment in the
Company or a Restricted Subsidiary or a Permitted Investment) in any Person,
including the Designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, or the Revocation of any such Designation, according to Section
1019; (iv) shall not, and shall not permit any Restricted Subsidiary to, redeem,
defease, repurchase, retire or otherwise acquire or retire for value, prior to
any scheduled maturity, repayment or sinking fund payment, Debt of the Company
which is subordinate
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in right of payment to the Securities (other than any redemption, defeasance,
repurchase, retirement or other acquisition or retirement for value made in
anticipation of satisfying a scheduled maturity, repayment or sinking fund
obligation due within one year thereof); and (v) shall not, and shall not permit
any Restricted Subsidiary to, issue, transfer, convey, sell or otherwise dispose
of Capital Stock of any Restricted Subsidiary to a Person other than the Company
or another Restricted Subsidiary if the result thereof is that such Restricted
Subsidiary shall cease to be a Restricted Subsidiary, in which event the amount
of such "Restricted Payment" shall be the Fair Market Value of the remaining
interest, if any, in such former Restricted Subsidiary held by the Company and
the other Restricted Subsidiaries (each of clauses (i) through (v) being a
"Restricted Payment") if: (1) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing, or (2) upon giving effect to
such Restricted Payment, the Company could not Incur at least $1.00 of
additional Debt pursuant to paragraph (a) of Section 1010, or (3) upon giving
effect to such Restricted Payment, the aggregate of all Restricted Payments made
on or after the Measurement Date, including Restricted Payments made pursuant to
clause (A) or (B) of the proviso at the end of this sentence, and Permitted
Investments made on or after the Measurement Date pursuant to clause (i) or (j)
of the definition thereof (the amount of any such Restricted Payment or
Permitted Investment, if made other than in cash, to be based upon Fair Market
Value) exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or, in
the case that Consolidated Net Income shall be negative, 100% of such negative
amount) since the end of the last full fiscal quarter prior to the Measurement
Date through the last day of the last full fiscal quarter ending at least 45
days prior to the date of such Restricted Payment and (b) plus, in the case of
any Revocation made after the Measurement Date, an amount equal to the lesser of
the portion (proportionate to the Company's equity interest in the Subsidiary to
which such Revocation relates) of the Fair Market Value of the net assets of
such Subsidiary at the time of Revocation and the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Subsidiary; provided, however, that the Company or
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a Restricted Subsidiary of the Company
may, without regard to the limitations in clause (3) but subject to clauses (1)
and (2), make (A) Restricted Payments in an aggregate amount not to exceed the
sum of $50,000,000 and the aggregate net cash proceeds received after the
Measurement Date (i) as capital contributions to the Company, from the issuance
(other than to a Subsidiary or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of their
employees) of Capital Stock (other than Disqualified Stock) of the Company, and
(ii) from the issuance or sale of Debt of the Company or any Restricted
Subsidiary (other than to a Subsidiary, the Company or an employee stock
ownership plan or trust established by the Company or any such Subsidiary for
the benefit of their employees) that after the Measurement Date has been
converted into or exchanged for Capital Stock (other than Disqualified Stock) of
the Company and (B) Investments in Persons engaged in the Telecommunications/IS
Business in an aggregate amount not to exceed the after-tax gain on the sale,
after the Measurement Date, of Special Assets to the extent sold for cash, Cash
Equivalents, Telecommunications/IS Assets or the assumption of Debt of the
Company or any Restricted Subsidiary (other than Debt that is subordinated to
the Securities or any applicable Restricted Subsidiary Guarantee) and release of
the Company and all Restricted Subsidiaries from all liability on the Debt
assumed. The aggregate net cash proceeds referred to in the immediately
preceding clauses (A)(i) and (A)(ii) shall not be utilized to make Restricted
Payments pursuant to such clauses to the extent such proceeds have been utilized
to make Permitted Investments under clause (i) of the definition of "Permitted
Investments."
(b) Notwithstanding the foregoing limitation, (i) the Company may pay
any dividend on Capital Stock of any class of the Company within 60 days after
the declaration thereof if, on the date when the dividend was declared, the
Company could have paid such dividend in accordance with the foregoing
provisions; provided, however, that at the time of such payment of such
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dividend, no other Event of Default shall have occurred and be continuing (or
result therefrom); (ii) the Company may repurchase any shares of its Common
Stock or options to acquire its Common Stock from Persons who were formerly
directors, officers or employees of the Company or any of its Subsidiaries or
other Affiliates in an amount not to exceed $3,000,000 in any 12-month period;
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(iii) the Company and any Restricted Subsidiary may refinance any Debt otherwise
permitted by clause (viii) of paragraph (b) of Section 1010 or clause (ix) of
Section 1011; (iv) the Company and any Restricted Subsidiary may retire or
repurchase any Capital Stock of the Company or of any Restricted Subsidiary or
any Subordinated Debt of the Company in exchange for, or out of the proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company or
an employee stock ownership plan or trust established by the Company or any such
Subsidiary for the benefit of their employees) of, Capital Stock (other than
Disqualified Stock) of the Company, provided that the proceeds from any such
--------
exchange or sale of Capital Stock shall be excluded from any calculation
pursuant to clause (A)(i) in the proviso at the end of paragraph (a) above or
pursuant to clause (b) of the definition of "Invested Capital"; and (v) the
Company may pay cash dividends in any amount not in excess of $50,000,000 in any
12-month period in respect of Preferred Stock of the Company (other than
Disqualified Stock). The Restricted Payments described in the foregoing clauses
(i), (ii) and (v) shall be included in the calculation of Restricted Payments;
the Restricted Payments described in clauses (iii) and (iv) shall be excluded in
the calculation of Restricted Payments.
SECTION 1013. Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries.
----------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction (other than
pursuant to law or regulation) on the ability of any Restricted Subsidiary (i)
to pay dividends (in cash or otherwise) or make any other distributions in
respect of its Capital Stock owned by the Company or any other Restricted
Subsidiary or pay any Debt or other obligation owed to the Company or any other
Restricted Subsidiary, (ii) to make loans or advances to the Company or any
other Restricted Subsidiary or (iii) to transfer any of its Property to the
Company or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing limitation, the Company may, and
may permit any Restricted Subsidiary to,
122
create or otherwise cause or suffer to exist (i) any encumbrance or restriction
pursuant to any agreement in effect on the Measurement Date, (ii) any customary
(as conclusively determined in good faith by the Chief Financial Officer of the
Company) encumbrance or restriction applicable to a Restricted Subsidiary that
is contained in an agreement or instrument governing or relating to Debt
contained in any Credit Facilities or Purchase Money Debt, provided that such
--------
encumbrances and restrictions permit the distribution of funds to the Company in
an amount sufficient for the Company to make the timely payment of interest,
premium (if any) and principal (whether at stated maturity, by way of a sinking
fund applicable thereto, by way of any mandatory redemption, defeasance,
retirement or repurchase thereof, including upon the occurrence of designated
events or circumstances or by virtue of acceleration upon an event of default,
or by way of redemption or retirement at the option of the holder of the Debt,
including pursuant to offers to purchase) according to the terms of this
Indenture and the Securities and other Debt that is solely an obligation of the
Company, but provided further that such agreement may nevertheless contain
----------------
customary (as so determined) net worth, leverage, invested capital and other
financial covenants, customary (as so determined) covenants regarding the merger
of or sale of all or any substantial part of the assets of the Company or any
Restricted Subsidiary, customary (as so determined) restrictions on transactions
with affiliates and customary (as so determined) subordination provisions
governing Debt owed to the Company or any Restricted Subsidiary, (iii) any
encumbrance or restriction pursuant to an agreement relating to any Acquired
Debt, which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired, (iv) any
encumbrance or restriction pursuant to an agreement effecting a refinancing of
Debt Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii)
of this paragraph (b), provided, however, that the provisions contained in such
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agreement relating to such encumbrance or restriction are no more restrictive
(as so determined) in any material respect than the provisions contained in the
agreement the subject thereof, (v) in the case of clause (iii) of paragraph (a)
above, any encumbrance or restriction contained in any security agreement
(including a Capital Lease Obligation) securing Debt of the Company or a
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Restricted Subsidiary otherwise permitted under this Indenture, but only to the
extent such restrictions restrict the transfer of the Property subject to such
security agreement, (vi) in the case of clause (iii) of paragraph (a) above,
customary provisions (A) that restrict the subletting, assignment or transfer of
any Property that is a lease, license, conveyance or similar contract, (B)
contained in asset sale or other asset disposition agreements limiting the
transfer of the Property being sold or disposed of pending the closing of such
sale or disposition or (C) arising or agreed to in the ordinary course of
business, not relating to any Debt, and that do not, individually or in the
aggregate, detract from the value of Property of the Company or any Restricted
Subsidiary in any manner material to the Company or any Restricted Subsidiary,
(vii) any encumbrance or restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or Property of such
Restricted Subsidiary, provided that the consummation of such transaction would
--------
not result in a Default or an Event of Default, that such restriction terminates
if such transaction is abandoned and that the consummation or abandonment of
such transaction occurs within one year of the date such agreement was entered
into, and (viii) any encumbrance or restriction pursuant to this Indenture and
the Securities.
SECTION 1014. Limitation on Liens.
--------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist any Lien on or with respect
to any Property now owned or acquired after the Measurement Date to secure any
Debt without making, or causing such Restricted Subsidiary to make, effective
provision for securing the Securities (x) equally and ratably with such Debt as
to such Property for so long as such Debt will be so secured or (y) in the event
such Debt is Debt of the Company or a Guarantor which is subordinate in right of
payment to the Securities or the applicable Restricted Subsidiary Guarantee,
prior to such Debt as to such Property for so long as such Debt will be so
secured.
124
The foregoing restrictions shall not apply to: (i) Liens existing on
the Measurement Date and securing Debt outstanding on the Measurement Date or
Incurred by the Company or a Restricted Subsidiary on or after the Measurement
Date pursuant to any Credit Facility to secure Debt permitted to be Incurred by
the Company or such Restricted Subsidiary pursuant to clause (ii) of paragraph
(b) under Section 1010; (ii) Liens securing Debt in an amount which, together
with the aggregate amount of Debt then outstanding or available under all Credit
Facilities (together with all refinancing Debt then outstanding or available
pursuant to clause (viii) of paragraph (b) of Section 1010 in respect of Debt
previously Incurred under Credit Facilities), does not exceed 1.5 times the
Company's Consolidated Cash Flow Available for Fixed Charges for the four full
fiscal quarters preceding the Incurrence of such Lien for which the Company's
consolidated financial statements are available, determined on a pro forma basis
as if such Debt had been Incurred and the proceeds thereof had been applied at
the beginning of such four fiscal quarters; (iii) Liens in favor of the Company
or any Restricted Subsidiary; provided, however, that any subsequent issue or
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transfer of Capital Stock or other event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of
the Debt secured by any such Lien (except to the Company or a Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such
Lien by the issuer thereof; (iv) Liens Incurred by the Company or a Restricted
Subsidiary to secure Purchase Money Debt permitted to be Incurred by the Company
or such Restricted Subsidiary pursuant to clause (iii) of paragraph (b) under
Section 1010, provided that any such Lien may not extend to any Property other
--------
than the Telecommunications/IS Assets installed, constructed, acquired, leased,
developed or improved with the proceeds of such Purchase Money Debt and any
improvements or accessions thereto (it being understood that all Debt to any
single lender or group of related lenders or outstanding under any single credit
facility, and in any case relating to the same group or collection of
Telecommunications/IS Assets financed thereby, shall be considered a single
Purchase Money Debt, whether drawn at one time or from time to time); (v) Liens
to secure Acquired Debt, provided that (a) such Lien attaches to the acquired
--------
Property prior to the time of the acquisition of such
125
Property and (b) such Lien does not extend to or cover any other Property; (vi)
Liens to secure Debt Incurred to refinance, in whole or in part, Debt secured by
any Lien referred to in the foregoing clauses (i), (iv) and (v) or this clause
(vi) so long as such Lien does not extend to any other Property (other than
improvements and accessions to the original Property) and the principal amount
of Debt so secured is not increased except as otherwise permitted under clause
(viii) of paragraph (b) of Section 1010 or clause (ix) of Section 1011; (vii)
Liens not otherwise permitted by the foregoing clauses (i) through (vi) securing
Debt in an aggregate amount not to exceed 5% of the Company's Consolidated
Tangible Assets; (viii) Liens granted after the Issue Date pursuant to this
Section 1014 to secure the Securities; and (ix) Permitted Liens.
SECTION 1015. Limitation on Sale and Leaseback Transactions.
----------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into, assume, Guarantee or otherwise become
liable with respect to any Sale and Leaseback Transaction, unless (i) the
Company or such Restricted Subsidiary would be entitled to Incur (a) Debt in an
amount equal to the Attributable Value of the Sale and Leaseback Transaction
pursuant to Section 1010 and (b) a Lien pursuant to Section 1014, equal in
amount to the Attributable Value of the Sale and Leaseback Transaction, without
also securing the Securities, and (ii) the Sale and Leaseback Transaction is
treated as an Asset Disposition and all of the conditions of Section 1016
(including the provisions concerning the application of Net Available Proceeds)
are satisfied with respect to such Sale and Leaseback Transaction, treating all
of the consideration received in such Sale and Leaseback Transaction as Net
Available Proceeds for purposes of such Section 1015.
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SECTION 1016. Limitation on Asset Dispositions.
---------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless: (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration for such disposition at
least equal to the Fair Market Value for the Property sold or disposed of as
determined by the Board of Directors in good faith and evidenced by a Board
Resolution filed with the Trustee; and (ii) at least 75% of the consideration
for such disposition consists of cash or Cash Equivalents or the assumption of
Debt of the Company or any Restricted Subsidiary (other than Debt that is
subordinated to the Securities or any applicable Restricted Subsidiary
Guarantee) and release of the Company and all Restricted Subsidiaries from all
liability on the Debt assumed (or if less than 75%, the remainder of such
consideration consists of Telecommunications/IS Assets); provided, however,
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that, to the extent such disposition involves Special Assets, all or any portion
of the consideration may, at the Company's election, consist of Property other
than cash, Cash Equivalents, the assumption of Debt or Telecommunications/IS
Assets.
The Net Available Proceeds (or any portion thereof) from Asset
Dispositions may be applied by the Company or a Restricted Subsidiary, to the
extent the Company or such Restricted Subsidiary elects (or is required by the
terms of any Debt): (1) to the permanent repayment or reduction of Debt then
outstanding under any Credit Facility, to the extent such Credit Facility would
require such application or prohibit payments pursuant to the Offer to Purchase
described in the following paragraph (other than Debt owed to the Company or any
Affiliate of the Company); or (2) to reinvest in Telecommunications/IS Assets
(including by means of an Investment in Telecommunications/IS Assets by a
Restricted Subsidiary with Net Available Proceeds received by the Company or
another Restricted Subsidiary).
Any Net Available Proceeds from an Asset Disposition not applied in
accordance with the preceding paragraph within 360 days (or, in the case of a
disposition of Special Assets identified in clause (a) of the definition thereof
in which the Net Available Proceeds exceed $500,000,000, 540 days) from the date
of the receipt of such Net Available
127
Proceeds shall constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $10,000,000, the Company will be required to make an Offer to
Purchase with such Excess Proceeds on a pro rata basis according to principal
amount (or, in the case of Debt issued at a discount, the then-Accreted Value)
for (x) Outstanding Securities at a price in cash equal to 100% of the principal
amount of the Securities on the purchase date plus accrued and unpaid interest
(if any) thereon (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date) and
(y) any other Debt of the Company or any Guarantor that is pari passu with the
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Securities, or any Debt of a Restricted Subsidiary that is not a Guarantor, at a
price no greater than 100% of the principal amount thereof plus accrued and
unpaid interest (if any) to the purchase date (or 100% of the then-Accreted
Value plus accrued and unpaid interest (if any) to the purchase date in the case
of original issue discount Debt), to the extent, in the case of this clause (y),
required under the terms thereof (other than Debt owed to the Company or any
Affiliate of the Company). To the extent there are any remaining Excess Proceeds
following the completion of the Offer to Purchase, the Company shall apply such
Excess Proceeds to the repayment of other Debt of the Company or any Restricted
Subsidiary, to the extent permitted or required under the terms thereof. Any
other remaining Excess Proceeds may be applied to any use as determined by the
Company which is not otherwise prohibited by this Indenture, and the amount of
Excess Proceeds shall be reset to zero.
The Company and the Trustee shall perform their respective obligations
for the Offer to Purchase as specified in the Offer. Prior to the Purchase Date,
the Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Offer, (ii) irrevocably deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted (provided that such deposit may be
made no later than 11:00 A.M. New York City time on the Purchase Date if the
Company elects) and (iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating the
Securities or
128
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Securities so accepted payment in an
amount equal to the Purchase Price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security or Securities equal in
principal amount to any unpurchased portion of the Security surrendered as
requested by the Holder. Any Security not accepted for payment shall be promptly
mailed or delivered by the Company to the Holder thereof. In the event that the
aggregate Purchase Price is less than the amount delivered by the Company to the
Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may
be, shall deliver the excess to the Company immediately after the Purchase Date.
Not later than the date upon which written notice of an Offer to
Purchase is delivered to the Trustee, the Company shall deliver to the Trustee
an Officers' Certificate as to (i) the amount of the Offer, (ii) the allocation
of the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made and (iii) the compliance of such allocation with the
provisions of this Section 1016.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 1017. Limitation on Issuance and Sales of Capital Stock of
----------------------------------------------------
Restricted Subsidiaries.
------------------------
129
The Company shall not, and shall not permit any Restricted Subsidiary
to, issue, transfer, convey, sell or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary or securities convertible or exchangeable into,
or options, warrants, rights or any other interest with respect to, Capital
Stock of a Restricted Subsidiary to any Person other than the Company or a
Restricted Subsidiary except (i) a sale of all of the Capital Stock of such
Restricted Subsidiary owned by the Company and any Restricted Subsidiary that
complies with the provisions of Section 1016 to the extent such provisions
apply, (ii) in a transaction that results in such Restricted Subsidiary becoming
a Joint Venture, provided (x) such transaction complies with the provisions of
--------
Section 1016 to the extent such provisions apply and (y) the remaining interest
of the Company or any other Restricted Subsidiary in such Joint Venture would
have been permitted as a new Restricted Payment or Permitted Investment under
the provisions of Section 1012, (iii) the issuance, transfer, conveyance, sale
or other disposition of shares of such Restricted Subsidiary so long as after
giving effect to such transaction such Restricted Subsidiary remains a
Restricted Subsidiary and such transaction complies with the provisions of
Section 1016 to the extent such provisions apply, (iv) the transfer, conveyance,
sale or other disposition of shares required by applicable law or regulation,
(v) if required, the issuance, transfer, conveyance, sale or other disposition
of directors' qualifying shares, (vi) Disqualified Stock issued in exchange for,
or upon conversion of, or the proceeds of the issuance of which are used to
refinance, shares of Disqualified Stock of such Restricted Subsidiary, provided
--------
that the amounts of the redemption obligations of such Disqualified Stock shall
not exceed the amounts of the redemption obligations of, and such Disqualified
Stock shall have redemption obligations no earlier than those required by, the
Disqualified Stock being exchanged, converted or refinanced, (vii) in a
transaction where the Company or a Restricted Subsidiary acquires at the same
time not less than its Proportionate Interest in such issuance of Capital Stock,
(viii) Capital Stock issued and outstanding on the Measurement Date, (ix)
Capital Stock of a Restricted Subsidiary issued and outstanding prior to the
time that such Person becomes a Restricted Subsidiary so long as such Capital
Stock was not issued in contemplation of such Person's becoming a Restricted
Subsidiary or otherwise being
130
acquired by the Company and (x) an issuance of Preferred Stock of a Restricted
Subsidiary (other than Preferred Stock convertible or exchangeable into Common
Stock of any Restricted Subsidiary) otherwise permitted by this Indenture. In
the event of (a) the consummation of a transaction referred to in any of the
foregoing clauses that results in a Guarantor no longer being a Restricted
Subsidiary and (b) the execution and delivery of a supplemental indenture
providing for such release in form satisfactory to the Trustee, any such
Guarantor shall be released from all its obligations under its Restricted
Subsidiary Guarantee.
SECTION 1018. Transactions with Affiliates.
-----------------------------
131
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, sell, lease, transfer, or otherwise
dispose of any of its Property to, or purchase any Property from, or enter into
any contract, agreement, understanding, loan, advance, Guarantee or transaction
(including the rendering of services) with or for the benefit of, any Affiliate
(each of the foregoing, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction or series of Affiliate Transactions is (i) in the best interest of
the Company or such Restricted Subsidiary and (ii) on terms that are no less
favorable to the Company or such Restricted Subsidiary than those that would
have been obtained in a comparable arm's-length transaction by the Company or
such Restricted Subsidiary with a Person that is not an Affiliate (or, in the
event that there are no comparable transactions involving Persons who are not
Affiliates of the Company or the relevant Restricted Subsidiary to apply for
comparative purposes, is otherwise on terms that, taken as a whole, the Company
has determined to be fair to the Company or the relevant Restricted Subsidiary)
and (b) the Company delivers to the Trustee (i) with respect to any Affiliate
Transaction or series of Affiliate Transactions involving aggregate payments in
excess of $10,000,000 but less than $15,000,000, a certificate of the chief
executive, operating or financial officer of the Company evidencing such
officer's determination that such Affiliate Transaction or series of Affiliate
Transactions complies with clause (a) above and (ii) with respect to any
Affiliate Transaction or series of Affiliate Transactions involving aggregate
payments equal to or in excess of $15,000,000, a Board Resolution certifying
that such Affiliate Transaction or series of Affiliate Transactions complies
with clause (a) above and that such Affiliate Transaction or series of Affiliate
Transactions has been approved by the Board of Directors, including a majority
of the disinterested members of the Board of Directors, provided that, in the
--------
event that there shall not be at least two disinterested members of the Board of
Directors with respect to the Affiliate Transaction, the Company shall, in
addition to such Board Resolution, file with the Trustee a written opinion from
an investment banking firm of national standing in the United States which, in
the good faith judgment of the Board of Directors, is independent with respect
to the Company and its Affiliates and qualified to perform such task, which
opinion
132
shall be to the effect that the consideration to be paid or received in
connection with such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, the following shall not be deemed
Affiliate Transactions: (i) any employment agreement entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business and
consistent with industry practice; (ii) any agreement or arrangement with
respect to the compensation of a director or officer of the Company or any
Restricted Subsidiary approved by a majority of the disinterested members of the
Board of Directors and consistent with industry practice; (iii) transactions
between or among the Company and its Restricted Subsidiaries, provided that no
--------
more than 5% of the Voting Stock (on a fully diluted basis) of any such
Restricted Subsidiary is owned by an Affiliate of the Company (other than a
Restricted Subsidiary); (iv) Restricted Payments and Permitted Investments
permitted by Section 1012 (other than Investments in Affiliates that are not the
Company or Restricted Subsidiaries); (v) transactions pursuant to the terms of
any agreement or arrangement as in effect on the Measurement Date; and (vi)
transactions with respect to wireline or wireless transmission capacity, the
lease or sharing or other use of cable or fiber optic lines, equipment, rights-
of-way or other access rights, between the Company (or any Restricted
Subsidiary) and any other Person, provided that, in the case of this clause
--------
(vi), such transaction complies with clause (a) in the immediately preceding
paragraph.
SECTION 1019. Limitation on Designations of Unrestricted Subsidiaries.
--------------------------------------------------------
The Company shall not designate any Subsidiary of the Company (other
than a newly created Subsidiary in which no Investment has previously been made)
as an "Unrestricted Subsidiary" under this Indenture (a "Designation") unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
133
(b) immediately after giving effect to such Designation, the
Company would be able to Incur $1.00 of Debt under paragraph (a) of
Section 1010; and
(c) the Company would not be prohibited under any provision of
this Indenture from making an Investment at the time of Designation
(assuming the effectiveness of such Designation) in an amount (the
"Designation Amount") equal to the portion (proportionate to the
Company's equity interest in such Restricted Subsidiary) of the Fair
Market Value of the net assets of such Restricted Subsidiary on such
date.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
1012 for all purposes of this Indenture in the Designation Amount; provided,
--------
however, that, upon a Revocation of any such Designation of a Subsidiary, the
-------
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary of an amount (if positive) equal to (i) the Company's
"Investment" in such Subsidiary at the time of such Revocation less (ii) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
Revocation. At the time of any Designation of any Subsidiary as an Unrestricted
Subsidiary, such Subsidiary shall not own any Capital Stock of the Company or
any Restricted Subsidiary. In addition, neither the Company nor any Restricted
Subsidiary shall at any time (x) provide credit support for, or a Guarantee of,
any Debt of any Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt); provided that the Company or a Restricted
--------
Subsidiary may pledge Capital Stock or Debt of any Unrestricted Subsidiary on a
nonrecourse basis such that the pledgee has no claim whatsoever against the
Company other than to obtain such pledged Capital Stock or Debt, (y) be directly
or indirectly liable for any Debt of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Debt which provides that the holder
thereof may (upon notice, lapse of time or both) declare a default thereon or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity upon the occurrence of a default with respect to any Debt,
Lien or other obligation of any Unrestricted Subsidiary
134
(including any right to take enforcement action against such Unrestricted
Subsidiary), except in the case of clause (x) or (y) to the extent permitted
under Sections 1012 and 1018.
Unless Designated as an Unrestricted Subsidiary, any Person that
becomes a Subsidiary of the Company will be classified as a Restricted
Subsidiary; provided, however, that such Subsidiary shall not be designated as a
-------- -------
Restricted Subsidiary and shall be automatically classified as an Unrestricted
Subsidiary if either of the requirements set forth in clauses (a) and (b) of the
immediately following paragraph will not be satisfied immediately following such
classification. Except as provided in the first sentence of this Section 1019,
no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary.
A Designation may be revoked (a "Revocation") by a Board Resolution
delivered to the Trustee, provided that the Company will not make any Revocation
--------
unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
and
(b) all Liens and Debt of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred at such time for all
purposes of this Indenture.
All Designations and Revocations must be evidenced by Board Resolutions
delivered to the Trustee (i) certifying compliance with the foregoing provisions
and (ii) giving the effective date of such Designation or Revocation, such
delivery to the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such Designation or Revocation is made (or, in
the case of a Designation or Revocation made during the last fiscal quarter of
the Company's fiscal year, within 90 days after the end of such fiscal year).
Upon Designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this Section 1019, such Restricted Subsidiary shall, by delivery
of a supplemental indenture providing for such release in form satisfactory to
the
135
Trustee, be released from any Restricted Subsidiary Guarantee previously
made by such Subsidiary.
ARTICLE ELEVEN
[INTENTIONALLY OMITTED]
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
-----------
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203
be applied to all Outstanding Securities upon compliance with the conditions
set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
-------------------------
136
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1202, the Company shall be deemed to have been discharged from
its obligations with respect to all Outstanding Securities on the date the
conditions set forth in Section 1204 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1205 and the other Sections of this Indenture referred to in
clauses (A) and (B) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (B)
rights of Holders to receive payment of principal of, premium, if any, and
interest on such Securities (but not the Purchase Price referred to under
Section 1009 or 1016) and any rights of the Holders with respect to such
amounts, (C) the rights, obligations and immunities of the Trustee under the
Indenture and (D) this Article Twelve. Subject to compliance with this Article
Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Securities. If the Company exercises its option under this Section 1202,
each Guarantor, if any, shall be released from all its obligations under its
Restricted Subsidiary Guarantee.
SECTION 1203. Covenant Defeasance.
--------------------
137
Upon the Company's exercise under Section 1201 of the option applicable
to this Section 1203, the Company shall be released from its obligations under
any covenant contained in Sections 801(3), (4) and (5), in Sections 803, 1005,
1006 and 1007 and Sections 1009 through 1019 and from the operation of Sections
501(6), (7), (8), (9) and (10) (but, in the case of Sections 501(9) and (10),
with respect only to Significant Subsidiaries), with respect to the Outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent, declaration or other Act of Holders (and the consequences of any
thereof) in connection with such provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities, 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 provision, whether directly or
indirectly, by reason of any reference elsewhere herein to any such provision or
by reason of any reference in any such provision 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), (4), (5), (6), (7), (8),
(9) or (10) (but, in the case of Section 501(9) or (10), with respect only to
Significant Subsidiaries) but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. If the Company
exercises its option under this Section 1203, each Guarantor, if any, shall be
released from all its obligations under its Restricted Subsidiary Guarantee.
138
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Twelve 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 Securities, at any time prior to the Maturity of the
Securities: (A) money in an amount, or (B) Government Securities which
through the payment of interest and principal will provide, not later
than one day before the due date of payment in respect of the
Securities, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the principal of
(and premium, if any, on) and interest on, the Outstanding Securities
on the Stated Maturity of such principal (and premium, if any) or
installment of interest; provided that the Trustee (or such other
trustee) shall have been irrevocably instructed in writing to apply
such money or the proceeds of such Government Securities to said
payments with respect to the Securities.
(2) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (9) and (10) of Section 501 are
concerned with respect to the Company, at any time during the period
ending on the 123rd 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, this Indenture
or any other agreement or
139
instrument to which the Company is a party or by which it is bound.
(4) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities 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 election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of
such 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) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with.
(7) The Company shall have delivered to the Trustee an Opinion
of Counsel acceptable to the Trustee to the effect that such defeasance
will not result in the trust relating thereto or the Trustee being
subject to regulation under the Investment Company Act of 1940.
140
SECTION 1205. 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 Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law or to the extent the
Company acts as its own Paying Agent.
The Company shall pay and indemnify the Trustee and (if applicable) its
officers, directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the Government Securities deposited pursuant to
Section 1204 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Securities held by it as provided in Section
1204 which, in the opinion of a nationally recognized firm of independent public
accountants 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 Twelve.
SECTION 1206. Reinstatement.
--------------
141
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 401 or 1205 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Guarantor's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401, 1202 or 1203, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance therewith; provided, however, that if the Company or any
-------- -------
Guarantor makes any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company or such
Guarantor shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
142
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
▇▇▇▇▇ ▇ COMMUNICATIONS, INC.
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President, General
Counsel and Secretary
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By:
/s/ Van ▇. ▇▇▇▇▇
________________________
Name: Van ▇. ▇▇▇▇▇
Title: Assistant Vice President
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
Form of Face of Security
------------------------
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR 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.
[Private Placement Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
A-2
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), PROVIDED THAT, IF SUCH
TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE (AS
DEFINED BELOW) PRIOR TO THE DATE THAT IS 40 DAYS FOLLOWING THE ISSUE DATE, A
CERTIFICATE THE FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT
IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND
A CERTIFICATE THE FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE
IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT
CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY
PURSUANT TO THIS CLAUSE (4) PRIOR TO THE DATE THAT IS 40 DAYS FOLLOWING THE
ISSUE DATE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES
IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
A-3
SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT.
[If a Physical Security, then insert:] IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
A-4
LEVEL 3 COMMUNICATIONS, INC.
11% Senior Note Due 2008
CUSIP No.
No. [up to] $
Level 3 Communications, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of [if a Global
Security, then insert: up to] _________ Dollars [if a Global Security, then
insert: (the outstanding principal amount of which shall be reflected in the
attached Schedule of Increases or Decreases in Global Security and the records
of the Trustee which, taken together with the outstanding principal amounts of
all other Outstanding Securities, shall not exceed $800,000,000 in the aggregate
at any time)] on March 15, 2008, at the office or agency of the Company referred
to below, and to pay interest thereon, in cash in arrears semiannually on March
15 and September 15 in each year, commencing on September 15, 2000, accruing
from February 29, 2000 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 11% per annum, until
the principal hereof is paid or duly provided for. The Company shall pay
interest on overdue principal at the rate borne by the Securities, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
[Delete this paragraph if an Exchange Security (other than a Private Exchange
Security).] The Holder of this Security is entitled to the benefits of a U.S.
Registration Agreement, dated as of February 24, 2000, between the Company and
the Purchasers named therein (the "Registration Agreement"). Capitalized terms
used in this paragraph but not defined herein have the meanings assigned to them
in the Registration Agreement. In the event that (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission on or prior to the 90th day following the date of the original
issuance of the Securities, (ii) neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been declared effective on or
prior to the 150th day
A-5
following the date of the original issuance of the Securities, (iii) neither the
Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective on or prior to the 180th day following the
date of the original issuance of the Securities, or (iv) after the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of the
Securities at any time that the Company is obligated to maintain the
effectiveness thereof pursuant to the Registration Agreement (each such event
referred to in clauses (i) through (iv) above being referred to herein as a
"Registration Default"), interest (the "Special Interest") shall accrue (in
addition to stated interest on the Securities) from and including the date on
which the first such Registration Default shall occur to but excluding the date
on which all Registration Defaults have been cured, at a rate per annum equal to
0.50% of the principal amount of the Securities; provided, however, that such
-------- -------
rate per annum shall increase by 0.25% per annum from and including the 91st day
after the first such Registration Default (and each successive 91st day
thereafter) unless and until all Registration Defaults have been cured; provided
--------
further, however, that in no event shall the Special Interest accrue at a rate
------- -------
in excess of 1.00% per annum. Accrued Special Interest, if any, shall be paid in
cash in arrears semiannually on March 15 and September 15 in each year; and the
amount of accrued Special Interest shall be determined on the basis of the
number of days actually elapsed. Any accrued and unpaid interest (including
Special Interest) on this Security upon the issuance of an Exchange Security in
exchange for this Security shall cease to be payable to the Holder hereof but
such accrued and unpaid interest (including Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof on the related Regular Record Date.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
A-6
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest,
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities, may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in said Indenture. Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in The
City of New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
-------- -------
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-7
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_______________ ▇▇▇▇▇ ▇ COMMUNICATIONS, INC.
By:
__________________________
Authorized Signatory
Attest:______________
A-8
Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of securities of the
Company designated as its 11% Senior Notes Due 2008 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $800,000,000, which may be issued
under an indenture (herein called the "Indenture") dated as of February 29, 2000
between the Company and The Bank of New York, as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are not redeemable prior to maturity.
Upon the occurrence of a Change of Control Triggering Event, the Holder
of this Security may require the Company, subject to certain limitations
provided in the Indenture, to repurchase this Security at a purchase price in
cash in an amount equal to 101% of the principal amount thereof, plus accrued
and unpaid interest (if any) to the purchase date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
To guarantee the due and punctual payment of the principal, premium (if
any) and interest on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Guarantors, if any, will
unconditionally guarantee such obligations on a senior unsecured basis pursuant
to the terms of the Indenture.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and
A-9
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and Defaults and Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Without the consent of any
Holder of Securities, the Company and the Trustee may amend or modify the
Indenture for certain purposes specified therein, including the release of
Guarantors, if any, from Restricted Subsidiary Guarantees as provided by the
terms of the Indenture. Any such consent or waiver by or on behalf of the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable on the Security
Register of the Company,
A-10
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained for such purpose in The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or other similar governmental charge
payable in connection therewith.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-11
Form of Trustee's Certificate of Authentication
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: __________________
This is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as
Trustee
By:
____________________________
Authorized Signatory
A-12
Assignment Form
---------------
If you, the holder, want to assign this Security, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Security to___________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)
___________________________________
(Print or type assignee's name, address and zip code)
___________________________________
___________________________________
___________________________________
and irrevocably appoint__________________________________
of ___________________________________________
___________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
A-13
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the date that is two years (or such shorter
period as may be prescribed by Rule 144(k) under the Securities Act or any
successor provision thereunder) after the later of the date of original issuance
of such Securities (or any Predecessor Security) or three months after the last
date, if any, on which such Securities (or any Predecessor Security) were owned
by the Company or any Affiliate of the Company, the undersigned confirms that
such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer
is being made in reliance on Rule 144A, in each case pursuant
to and in compliance with Rule 144A under the Securities Act of
1933; or
(4) [_] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933, provided that,
if such transfer is being effected by certain transferors
specified in the Indenture prior to the date that is 40 days
following the Issue Date, a certificate which may be obtained
from the Company or the Trustee is delivered by the transferee
to the Company and the Trustee; or
(5) [_] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7)
A-14
under the Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the
Trustee or the Company), provided that certain transferors
specified in the Indenture may not transfer this Security
pursuant to this clause (5) prior to the date that is 40 days
following the Issue Date; or
(6) [_] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (4), (5) or
-------- -------
(6) is checked, the Trustee may require, prior to registering any such transfer
of the Securities, such legal opinions, certifications and other information as
the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
Dated: ______________________ Your signature: __________________________
(Sign exactly as
your name appears on the other side of this
Security)
By:
_______________________________________
NOTICE: To be executed by an executive
officer
Signature Guarantee: _____________________________________________________
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account
A-15
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 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 (including the information specified in Rule 144A(d)(4)) 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
Option of Holder to Elect Purchase
----------------------------------
If you wish to have this Security purchased by the Company pursuant to
Section 1009 or 1016 of the Indenture, check the box: [_]
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1009 or 1016 of the Indenture, state the amount:
$_________________.
Dated: __________________ Your Signature:_____________________________
(Sign exactly as your name appears on the
other side of this Security)
A-16
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this
Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Transfer in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Security Registrar
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of Level 3 Communications, Inc. (or its
successor), a Delaware corporation (the "Company"), ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇., on behalf of itself and the Guarantors (the
"Existing Guarantors"), if any, under the Indenture referred to
below, and THE BANK OF NEW YORK, a New York banking corporation,
as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of February 29, 2000 (the "Indenture"; capitalized
terms used but not defined herein having the meanings assigned thereto in the
Indenture), providing for the issuance of an aggregate principal amount of up to
$800,000,000 of 11% Senior Notes Due 2010 (the "Securities");
WHEREAS the Indenture permits the New Guarantor to execute and deliver
to the Trustee a supplemental indenture pursuant to which the New Guarantor
shall unconditionally guarantee all the Company's obligations under the
Securities pursuant to a Guarantee on the terms and conditions set forth herein;
WHEREAS the Guarantee contained in this Supplemental Indenture shall
constitute a "Restricted Subsidiary Guarantee", and the New Guarantor shall
constitute a "Guarantor", for all purposes of the Indenture; and
WHEREAS pursuant to Section 901 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture;
B-2
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Guaranties. The New Guarantor hereby unconditionally guarantees,
-----------
jointly and severally, to each Holder and to the Trustee and its successors and
assigns (a) the full and punctual payment of principal of (and premium, if any)
and interest on the Securities when due, whether at Stated Maturity, by
acceleration or otherwise, and all other monetary obligations of the Company
under the Indenture and the Securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company under
the Indenture and the Securities (all the foregoing being hereinafter
collectively called the "Obligations"). The New Guarantor further agrees that
the Obligations may be extended or renewed, in whole or in part, without notice
or further assent from the New Guarantor and that the New Guarantor will remain
bound under this Supplemental Indenture notwithstanding any extension or renewal
of any Obligation.
The New Guarantor waives presentation to, demand of, payment from and
protest to the Company of any of the Obligations and also waives notice of
protest for nonpayment. The New Guarantor waives notice of any default under the
Securities or the Obligations. The obligations of the New Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Company or any
other Person under the Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of the
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations; or (f) any change in the
ownership of the New Guarantor.
The New Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and
B-3
waives any right to require that any resort be had by any Holder or the Trustee
to any security held for payment of the Obligations.
Except as expressly set forth in Section 803, 1017, 1019, 1202 and
1203 of the Indenture, the obligations of the New Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality
or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the New Guarantor herein shall
not be discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy under the
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of the New Guarantor or would otherwise operate as a
discharge of the New Guarantor as a matter of law or equity.
The New Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or (premium, if any) interest on
any Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against the New
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of (or premium, if any) or interest on any Obligation when and as the same shall
become due, whether at Stated Maturity, by acceleration or otherwise, or to
perform or comply with any other Obligation, the New Guarantor hereby promises
to and will, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an amount equal to the
sum of (i) the unpaid amount of such Obligations,
B-4
(ii) accrued and unpaid interest on such Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary Obligations of the Company to
the Holders and the Trustee.
The New Guarantor agrees that it shall not be entitled to any right of
subrogation in respect of any Obligations guaranteed hereby until payment in
full in cash of all Obligations. The New Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article Five of the Indenture for the purposes of the New
Guarantor's Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article Five of the Indenture, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the
New Guarantor for the purposes of this Section.
The New Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 1.
2. Contribution. Each of the Company and the New Guarantor (a
-------------
"Contributing Party") agrees that, in the event a payment shall be made by any
other Guarantor under any Restricted Subsidiary Guarantee (the "Claiming
Guarantor"), the Contributing Party shall indemnify the Claiming Guarantor in an
amount equal to the amount of such payment multiplied by a fraction, the
numerator of which shall be the net worth of the Contributing Party (which, in
the case of the Company, shall be measured on the Issue Date, and in the case of
the New Guarantor, on the date hereof) and the denominator of which shall be the
aggregate net worth of the Company on the Issue Date and the Guarantors on
respective dates of the Supplemental Indentures executed and delivered by such
Guarantors.
3. Successors and Assigns. This Supplemental Indenture shall
-----------------------
be binding upon the New Guarantor and its successors and assigns and shall enure
to the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party
B-5
in the Indenture and in the Securities shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture.
4. No Waiver. Neither a failure nor a delay on the part of
----------
either the Trustee or the Holders in exercising any right, power or privilege
under this Supplemental Indenture, the Indenture or the Securities shall operate
as a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein and therein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Supplemental Indenture, the Indenture
or the Securities at law, in equity, by statute or otherwise.
5. Modification. No modification, amendment or waiver of any
-------------
provision of this Supplemental Indenture, nor the consent to any departure by
the New Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on the New Guarantor in any case shall entitle the
New Guarantor to any other or further notice or demand in the same, similar or
other circumstances.
6. Opinion of Counsel. Concurrently with the execution and
-------------------
delivery of this Supplemental Indenture, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that this Supplemental Indenture has
been duly authorized, executed and delivered by each of the New Guarantor and
the Company and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of the New Guarantor is a
legal, valid and binding obligation of the New Guarantor, enforceable against
the New Guarantor in accordance with its terms.
7. Ratification of Indenture; Supplemental Indentures Part of
----------------------------------------------------------
Indenture. Except as expressly amended hereby, the Indenture is in all respects
----------
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
B-6
heretofore or hereafter authenticated and delivered shall be bound hereby.
8. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
--------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of this
-------------
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
-------------------
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
____________________________________
Name:
Title:
LEVEL 3 COMMUNICATIONS, INC.,
on behalf of itself and the
Existing Guarantors, if any,
by
____________________________________
Name:
Title:
▇-▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Trustee,
by
____________________________________
Name:
Title: