Exhibit 4.3
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METROMEDIA FIBER NETWORK, INC.
$[ ] [ ]% SENIOR NOTES DUE 2009
[EURO][ ] [ ]% SENIOR NOTES DUE 2009
FORM OF INDENTURE
Dated as of November __, 1999
THE BANK OF NEW YORK
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(i)(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(2) 7.07
(c) 7.06; 12.02
(d) 7.06
314(a) 4.03; 12.02
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05; 12.02
(A)(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 9.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
N.A. means not applicable
*This Cross-Reference Table is not, for any purposes, part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.01 DEFINITIONS 1
SECTION 1.02 OTHER DEFINITIONS 20
SECTION 1.03 TRUST INDENTURE ACT DEFINITIONS 21
SECTION 1.04 RULES OF CONSTRUCTION 21
ARTICLE 2. THE NOTES 22
SECTION 2.01 FORM AND DATING 22
SECTION 2.02 EXECUTION AND AUTHENTICATION 23
SECTION 2.03 REGISTRAR AND PAYING AGENT 24
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST 24
SECTION 2.05 HOLDER LISTS 25
SECTION 2.06 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES, CERTIFICATED NOTES 25
SECTION 2.07 TRANSFER AND EXCHANGE 26
SECTION 2.08 REPLACEMENT NOTES 32
SECTION 2.09 OUTSTANDING NOTES 33
SECTION 2.10 TREASURY NOTES 33
SECTION 2.11 TEMPORARY NOTES 33
SECTION 2.12 CANCELLATION 34
SECTION 2.13 DEFAULTED INTEREST 34
SECTION 2.14 CUSIP AND ISIN NUMBERS 34
ARTICLE 3. REDEMPTION AND PREPAYMENT 35
SECTION 3.01 NOTICES TO TRUSTEE 35
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED 35
SECTION 3.03 NOTICE OF REDEMPTION 36
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION 36
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE 37
SECTION 3.06 NOTES REDEEMED IN PART 37
SECTION 3.07 OPTIONAL REDEMPTION 37
SECTION 3.08 MANDATORY REDEMPTION 38
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS 38
ARTICLE 4. COVENANTS 40
SECTION 4.01 PAYMENT OF NOTES 40
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY 41
SECTION 4.03 REPORTS 42
SECTION 4.04 COMPLIANCE CERTIFICATE 42
SECTION 4.05 TAXES 43
SECTION 4.06 STAY, EXTENSION AND USURY LAWS 43
SECTION 4.07 RESTRICTED PAYMENTS 43
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES 47
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK 48
SECTION 4.10 ASSET SALES 51
SECTION 4.11 TRANSACTIONS WITH AFFILIATES 53
SECTION 4.12 LIENS 54
SECTION 4.13 CORPORATE EXISTENCE 55
SECTION 4.14 CHANGE OF CONTROL 55
SECTION 4.15 BUSINESS ACTIVITIES 56
SECTION 4.16 PAYMENTS FOR CONSENT 56
SECTION 4.17 MONEY FOR PAYMENTS TO BE HELD IN TRUST 56
ARTICLE 5. SUCCESSORS 58
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS 58
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED 59
ARTICLE 6. DEFAULTS AND REMEDIES 59
SECTION 6.01 EVENTS OF DEFAULT 59
SECTION 6.02 ACCELERATION 61
SECTION 6.03 OTHER REMEDIES 61
SECTION 6.04 WAIVER OF PAST DEFAULTS 62
SECTION 6.05 CONTROL BY MAJORITY 62
SECTION 6.06 LIMITATION ON SUITS 62
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT 63
SECTION 6.08 COLLECTION SUIT BY TRUSTEE 63
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM 63
SECTION 6.10 PRIORITIES 64
SECTION 6.11 UNDERTAKING FOR COSTS 64
ARTICLE 7. TRUSTEE 65
SECTION 7.01 DUTIES OF TRUSTEE 65
SECTION 7.02 RIGHTS OF TRUSTEE 66
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE 67
SECTION 7.04 TRUSTEE'S DISCLAIMER 67
SECTION 7.05 NOTICE OF DEFAULTS 67
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES 68
SECTION 7.07 COMPENSATION AND INDEMNITY 68
SECTION 7.08 REPLACEMENT OF TRUSTEE 69
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC. 70
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION 70
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY 71
SECTION 7.12 MONEY HELD IN TRUST 71
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE 71
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE 71
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE 71
SECTION 8.03 COVENANT DEFEASANCE 72
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE 72
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS 74
SECTION 8.06 REPAYMENT TO COMPANY 74
SECTION 8.07 REINSTATEMENT 75
SECTION 8.08 SURVIVAL 75
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER 75
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES 75
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES 76
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT 78
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS 78
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES 78
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC. 79
ARTICLE 10. SATISFACTION AND DISCHARGE 79
SECTION 10.01 SATISFACTION AND DISCHARGE OF INDENTURE 79
SECTION 10.02 APPLICATION OF TRUST MONEY 80
ARTICLE 11. [INTENTIONALLY OMITTED] 80
ARTICLE 12. MISCELLANEOUS 81
SECTION 12.01 TRUST INDENTURE ACT CONTROLS 81
SECTION 12.02 NOTICES 81
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES 83
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT 83
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION 83
SECTION 12.06 RULES BY TRUSTEE AND AGENTS 84
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS 84
SECTION 12.08 GOVERNING LAW 84
SECTION 12.09 CONSENT TO JURISDICTION AND SERVICE 84
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS 85
SECTION 12.11 SUCCESSORS 85
SECTION 12.12 SEVERABILITY 85
SECTION 12.13 COUNTERPART ORIGINALS 85
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC. 85
SECTION 12.15 JUDGMENT CURRENCY 85
EXHIBIT A-1 A-1
EXHIBIT A-2 A-2
FORM OF INDENTURE, dated as of November __, 1999 by and
between Metromedia Fiber Network, Inc., a Delaware corporation (the "COMPANY")
and The Bank of New York, a New York banking corporation, as trustee (the
"TRUSTEE").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the $[ ]%
Senior Notes due 2009 denominated in U.S. Dollars (the "Dollar Notes") and the
[EURO][ ]% Senior Notes due 2009 denominated in Euros (the "Euro Notes" and,
together with the Dollar Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"ACQUIRED DEBT" or "ACQUIRED PREFERRED STOCK" means, with
respect to any specified Person, Indebtedness or Preferred Stock of any other
Person existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person (including by Designation or Revocation),
provided such Indebtedness or Preferred Stock is not incurred in connection
with, or in contemplation of, such other Person merging with or into or becoming
a Subsidiary of such specified Person.
"AGENT MEMBER" means, with respect to any Depositary, any
member of, or participant in, such Depositary.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
PROVIDED that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"AGENT MEMBER" means, with respect to any Depositary, any
member of, or participant in, such Depositary.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear or CEDEL Bank that apply to such
transfer or exchange.
"ASSET SALE" means (i) the sale, lease, transfer, conveyance
or other disposition of any assets or rights (including, without limitation, by
way of a sale and leaseback) other than sales of inventory in the ordinary
course of business and other than any sale, lease, transfer, conveyance or other
disposition in the ordinary course of business of capacity on any fiber optic or
cable system owned, controlled or operated by the Company or any Restricted
Subsidiary or of telecommunications capacity, transmission rights, conduit or
rights-of-way acquired by the Company or any Restricted Subsidiary for use in a
Telecommunications Business of the Company or any Restricted Subsidiary
(PROVIDED that the sale, lease, transfer, conveyance or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of Section 5.01
hereof and/or Section 4.14 and not by the provisions of Section 4.10 hereof),
and (ii) the issue or sale by the Company or any of its Restricted Subsidiaries
of Equity Interests of any Subsidiary. Notwithstanding the foregoing, the
following items shall not be deemed to be Asset Sales: (i) a transfer of assets
by the Company to a Consolidated Subsidiary or by a Subsidiary to the Company or
to a Consolidated Subsidiary, (ii) an issuance of Equity Interests by a
Subsidiary to the Company or to a Consolidated Subsidiary, (iii) a Restricted
Payment that is permitted by Section 4.07 hereof, (iv) Permitted Investments
made in accordance with clause (a) or (d) of the definition thereof, (v) a
disposition of obsolete or worn out equipment or equipment that is no longer
useful in the conduct of a Telecommunications Business of the Company and its
Restricted Subsidiaries and that is disposed of in the ordinary course of
business, (vi) the surrender or waiver by the Company or any of its Restricted
Subsidiaries of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind by the Company or any of its
Restricted Subsidiaries or the grant by the Company or any of its Restricted
Subsidiaries of a Lien not prohibited by the Indenture, (vii) the sale of Cash
Equivalents in the ordinary course of business; and (viii) sales, transfers,
assignments and other dispositions of assets (or related assets in related
transactions) in the ordinary course of business with an aggregate fair market
value of less than $1.0 million.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors or other
governing body of the Company or, if the Company is owned or managed by a single
entity, the board of directors or other governing body of such entity, or, in
either case, any committee thereof duly authorized to act on behalf of such
board or governing body.
"BOARD RESOLUTION" means a duly authorized resolution of the
Board of Directors.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL CONTRIBUTION" means any contribution to the equity of
the Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of common stock with no redemption rights
and no special preferences, privileges or voting rights is given.
"CAPITAL LEASE OBLIGATION" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means (i) United States dollars or Euros,
(ii) securities issued or directly and fully guaranteed or insured by (a) the
United States government or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) or
(b) any member of the European Economic Area or Switzerland or any agency or
instrumentality thereof provided that such country, agency or instrumentality
has a credit rating at least equal to that of the Unites States of America
(provided, further, that the full faith and credit of such respective nation is
pledged in support thereof), in each case having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a ▇▇▇▇▇▇▇▇ Bank Watch Rating
of "B" or better, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (ii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, (v) commercial paper having the highest rating obtainable
from ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Services and
in each case maturing within six months after the date of acquisition and (vi)
money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i)-(v) of this definition,
PROVIDED that with respect to any Foreign Subsidiary, Cash Equivalents shall
also mean those investments that are comparable to clauses (iii) through (vi)
above in such Foreign Subsidiary 's country of organization or country where it
conducts business operations.
"CEDEL BANK" means CEDEL Bank, SA.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (i) any "person" or "group" (as such terms are used in Section
13(d)(3) of the Exchange Act), other than a Permitted Holder, is or becomes the
beneficial owner, directly or indirectly, of 35% or more of the Voting Stock
(measured by voting power rather than number of shares) of the Company and the
Permitted Holders own, in the aggregate, a lesser percentage of the total Voting
Stock (measured by voting power rather than by number of shares) of the Company
than such person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the board of
directors of the Company (for the purposes of this clause, such other person
shall be deemed to "beneficially own" any Voting Stock of a specified
corporation held by a parent corporation if such other person beneficially owns,
directly or indirectly, more than 35% of the Voting Stock (measured by voting
power rather than by number of shares) of such parent corporation and the
Permitted Holders beneficially own, directly or indirectly, in the aggregate a
lesser percentage of Voting Stock (measured by voting power rather than by
number of shares) of such parent corporation and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent corporation), (ii)
during any period of two consecutive years, Continuing Directors cease for any
reason to constitute a majority of the Board of Directors of the Company, (iii)
the Company consolidates or merges with or into any other Person, other than a
consolidation or merger (a) of the Company into a Wholly Owned Restricted
Subsidiary of the Company or (b) pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other property with the effect that the beneficial owners of the
outstanding Voting Stock of the Company immediately prior to such transaction,
beneficially own, directly or indirectly, at least a majority of the Voting
Stock (measured by voting power rather than number of shares) of the surviving
corporation immediately following such transaction or (iv) the sale, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole to any
person other than a Wholly Owned Restricted Subsidiary of the Company or a
Permitted Holder or a person more than 50% of the Voting Stock (measured by
voting power rather than by number of shares) of which is owned, directly or
indirectly, following such transaction or transactions by the Permitted Holders;
PROVIDED, HOWEVER, that sales, transfers, conveyances or other dispositions in
the ordinary course of business of capacity on fiber optic or cable systems
owned, controlled or operated by the Company or any Restricted Subsidiary or of
telecommunications capacity or transmission rights, rights of way or conduit
acquired by the Company or any Restricted Subsidiary for use in the
Telecommunications Business of the Company or a Restricted Subsidiary,
including, without limitation, for sale, lease, transfer, conveyance or other
disposition to any customer of the Company or any Restricted Subsidiary shall
not be deemed a disposition of assets for purposes of this clause (iv).
"COMMON DEPOSITARY" means a common depositary for ▇▇▇▇▇▇
Guarantee Trust Company of New York, Brussels office, as operator of the
Euroclear system.
"COMPANY" means Metromedia Fiber Network, Inc., a Delaware
corporation, and any and all successors thereto.
"COMPANY ORDER" OR "COMPANY REQUEST" means a written request
or order signed in the name of the Company by a member of the Company's Board of
Directors, the Chief Executive Officer, the President or a Vice President, and
by the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Secretary, an Assistant Secretary or other authorized
representative of the Company and delivered to the Trustee.
"CONSOLIDATED CAPITAL RATIO" means, with respect to the
Company as of any date, the ratio of (i) the aggregate consolidated amount of
Indebtedness of the Company and its Restricted Subsidiaries then outstanding to
(ii) the Consolidated Net Worth of the Company and its Consolidated Subsidiaries
as of such date.
"CONSOLIDATED CASH FLOW" means, with respect to the Company
for any period, the Consolidated Net Income of the Company and its Consolidated
Subsidiaries for such period plus (A), to the extent that any of the following
items were deducted in computing such Consolidated Net Income, but without
duplication, (i) provision for taxes based on income or profits of the Company
and its Consolidated Subsidiaries for such period, plus (ii) consolidated
interest expense of the Company and its Consolidated Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), plus (iii) depreciation,
amortization (including amortization of goodwill and other intangibles and the
amount of capacity available for sale (other than for backhaul capacity) charged
to cost of sales, but excluding amortization of prepaid cash expenses that were
paid in a prior period), and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of the Company and its Consolidated
Subsidiaries for such period, minus (B) non-cash items increasing such
Consolidated Net Income for such period (other than items that were accrued in
the ordinary course of business), in each case, on a consolidated basis and
determined in accordance with GAAP. Notwithstanding the foregoing, the provision
for taxes on the income or profits of, and the depreciation and amortization and
other non-cash expenses of, a Restricted Subsidiary of the Company shall be
added to Consolidated Net Income to compute Consolidated Cash Flow of the
Company only to the extent that a corresponding amount would be permitted at the
date of determination to be dividended to the Company by such Restricted
Subsidiary without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
shareholders.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to the
Company, as of any date, the ratio of (i) the aggregate consolidated amount of
Indebtedness of the Company and its Restricted Subsidiaries then outstanding to
(ii) the annualized (that is, multiplied by four) Consolidated Cash Flow of the
Company and its Consolidated Subsidiaries for the most recently ended fiscal
quarter.
"CONSOLIDATED NET INCOME" means, with respect to the Company
for any period, the aggregate of the Net Income of the Company and its
Consolidated Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; PROVIDED that (i) the Net Income (but not loss) of any
Person that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the Company or a Consolidated Subsidiary thereof by such Person but not
in excess of the Company's Equity Interests in such Person, (ii) the Net Income
of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its shareholders, except
that the Company's equity in the net income of any such Restricted Subsidiary
for such period may be included in such Consolidated Net Income up to the
aggregate amount of cash that could have been distributed by such Restricted
Subsidiary during such period to the Company as a dividend, (iii) the Net Income
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded, (iv) the equity of the
Company or any Restricted Subsidiary in the net income (if positive) of any
Unrestricted Subsidiary shall be included in such Consolidated Net Income up to
the aggregate amount of cash actually distributed by such Unrestricted
Subsidiary during such period to the Company or a Consolidated Subsidiary as a
dividend or other distribution (but not in excess of the amount of the Net
Income of such Unrestricted Subsidiary for such period) and (v) the cumulative
effect of a change in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to the Company as
of any date, the sum of (i) the consolidated equity of the common shareholders
of the Company and its Consolidated Subsidiaries that are Consolidated
Subsidiaries as of such date plus (ii) the respective amounts reported on the
Company's balance sheet as of such date with
respect to any series of Preferred Stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by the
Company upon issuance of such Preferred Stock, less (x) all write-ups (other
than write-ups resulting from foreign currency translations and write-ups of
tangible assets of a going concern business made within 12 months after the
acquisition of such business) subsequent to the Issue Date in the book value of
any asset owned by the Company or a Restricted Subsidiary that is a Consolidated
Subsidiary of the Company, (y) all outstanding net Investments as of such date
in unconsolidated Restricted Subsidiaries and in Persons that are not Restricted
Subsidiaries (except, in each such case, Permitted Investments), and (z) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means, for any Person, each
Restricted Subsidiary of such Person (whether now existing or hereafter created
or acquired) the financial statements of which are consolidated for financial
statement reporting purposes with the financial statements of such Person in
accordance with GAAP.
"CONTINUING DIRECTORS" means individuals who at the beginning
of the period of determination constituted the Board of Directors of the
Company, together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors of the Company then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved or is the
designee of any one of the Permitted Holders or any combination thereof or was
nominated or elected by any such Permitted Holder(s) or any of their designees.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the
address of the Trustee specified in Section 12.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"CREDIT AGREEMENT" means one or more credit agreements, loan
agreements or similar facilities, secured or unsecured, 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.
"CURRENCY AGREEMENT" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement as
to which such Person is a party or beneficiary.
"DEFAULT" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof, in
the form of EXHIBIT A-1 hereto (in the case of a Dollar Note) or EXHIBIT A-2 (in
the case of a Euro Note) except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Persons specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature; PROVIDED, HOWEVER, that any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"DOLLARS" or "$" or "U.S. DOLLARS" means the lawful currency
of the United States of America and, in relation to any amount to be advanced or
paid under this Indenture or the Note, funds having immediate value.
"DOLLAR NOTE" has the meaning assigned to it in the preamble
to this Indenture.
"DOLLAR GLOBAL NOTE" means the Global Note in the form of
EXHIBIT A-1 hereto.
"DOLLAR PAYING AGENT" means an office or agency of the Company
where Dollar Notes may be presented for payment.
"DOLLAR REGISTRAR" means an office or agency of the Company,
where Dollar Notes may be presented for registration of transfer or exchange.
"DTC" means The Depository Trust Company, its nominees and
successors.
"EEA GOVERNMENT OBLIGATION" means direct non-callable
obligations of, or non-callable obligations guaranteed by, any member nation of
the European Union for the payment of which obligation or guarantee the full
faith and credit of the respective nation is pledged; PROVIDED that such nation
has a credit rating at least equal to that of the highest rated member nation of
the European Economic Area.
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"EURO" or "[EURO]" means the currency adopted by those
countries participating in the third stage of European monetary union.
"EURO GLOBAL NOTE" means the Global Note in the form of
EXHIBIT A-2 hereto.
"EURO NOTE" has the meaning assigned to it in the preamble to
this Indenture.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"EUROPEAN ECONOMIC AREA" means the member nations of the
European Economic Area pursuant to the Oporto Agreement on the European Economic
Area dated May 2, 1992 as amended.
"EUROPEAN UNION" means the member nations 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.
"EURO PAYING AGENT" means an office or agency of the Company
where Euro Notes may be presented for payment.
"EURO REGISTRAR" means an office or agency of the Company
where Euro Notes may be presented for registration of transfer or exchange.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended (or any successor Act), and the rules and regulations promulgated
thereunder (or respective successor thereto).
"EXISTING ASSETS" means property, plant and equipment and
other tangible business assets existing as of the Issue Date used in a
Telecommunications Business of the Company, but does not include cash or Cash
Equivalents existing on the Issue Date, and the proceeds from the sale,
disposition or other transfer of any Existing Assets outside the ordinary course
of business.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and
its Restricted Subsidiaries in existence on the Issue Date, until such amounts
are repaid.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary of the
Company which (i) is not organized under the laws of the United States, any
state thereof or the District of Columbia, and (ii) conducts substantially all
of its business operations outside the United States of America.
"FOREIGN SUBSIDIARY CREDIT AGREEMENT" means one or more credit
agreements, loan agreements or similar facilities, secured or unsecured, entered
into from time to time by one or more of the Company's Foreign 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.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"GERMAN JOINT VENTURE" means the Person(s) formed or organized
to engineer, develop, construct and own a fiber optic telecommunications network
in Germany.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.07(f), which is required to be placed on all Global Notes issued under this
Indenture.
"GLOBAL NOTES" means, collectively, the Global Notes, in the
form of EXHIBIT A-1 (in the case of the Dollar Notes) or EXHIBIT A-2 (in the
case of the Euro Notes) hereto issued in accordance with Section 2.01 hereof and
bearing the Global Note Legend.
"GOVERNMENT SECURITIES" means securities that are (a) direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) of the payment of which the
full faith and credit of the United States of America is pledged, (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or (c) obligations of a Person the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America.
"GUARANTEE" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
PROVIDED, HOWEVER, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under any Interest Rate Agreement or Currency
Agreement.
"HOLDER" means a Person in whose name a Note is registered on
the Registrar's or any co-registrar's books.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance of the
deferred and unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an accrued expense
or trade payable, if and to the extent any of the foregoing (other than letters
of credit (or reimbursement agreements in respect thereof), banker's
acceptances and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person), Disqualified Stock of such
Person and Preferred Stock of such Person's Restricted Subsidiaries and, to the
extent not otherwise included, the Guarantee by such Person of any Indebtedness
of any other Person. The amount of any Indebtedness outstanding as of any date
shall be (i) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount, but the accretion of original issue discount in
accordance with the original terms of Indebtedness issued with an original issue
discount will not be deemed to be an incurrence, and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INTEREST PAYMENT DATE" shall have the meaning assigned to
such term in the Notes.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or
beneficiary.
"INVESTMENTS" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including Guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to directors, officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any of its Restricted Subsidiaries sells
or otherwise disposes of any Equity Interests of any direct or indirect
Subsidiary such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company or such Restricted Subsidiary,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 4.07 hereof.
"ION" means International Optical Network, L.L.C., a Delaware
limited liability company.
"ISSUE DATE" means the date of first issuance of the Notes
under the Indenture.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue on such payment for the
intervening period.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in, and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"MANAGEMENT ADVANCES" means loans or advances made to
directors, officers or employees of the Company or any Restricted Subsidiary (i)
in respect of travel, entertainment or moving-related expenses incurred in the
ordinary course of business, (ii) in respect of moving-related expenses incurred
in connection with any closing or consolidation of any facility, or (iii)
otherwise in the ordinary course of business not exceeding $3.0 million in the
aggregate at any time outstanding.
"MANAGEMENT AGREEMENT" means the management agreement between
the Company and Metromedia Company, dated as of January 2, 1998, as the same may
be amended, supplemented, modified, restated or replaced from time to time with
the approval of a majority of the disinterested members of the Board of
Directors.
"NET CASH PROCEEDS" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Capital Stock and by the Company and its Restricted
Subsidiaries in respect of an Asset Sale plus, in the case of an issuance of
Capital Stock upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of cash
originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and reasonable and
customary expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in connection
with such Asset Sale or sale of Capital Stock, and, in the case of an Asset Sale
only, less the amount (estimated reasonably and in good faith by the Company) of
income, franchise, sales and other applicable federal, state, provincial,
foreign or local taxes required to be paid or accrued as a liability by the
Company or any of its respective Restricted Subsidiaries in connection with such
Asset Sale in the taxable year that such sale is consummated or in the
immediately succeeding taxable year, the computation of which shall take into
account the reduction in tax liability resulting from any available operating
losses and net operating loss carryovers, tax credits and tax credit
carryforwards, and similar tax attributes.
"NET INCOME" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary gain or loss, together
with any related provision for taxes on such extraordinary gain or loss.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither
the Company nor any Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"NOTE CUSTODIAN" means the Person specified in Section 2.03
hereof as the Note Custodian with respect to the Global Notes or any successor
entity thereto appointed as Note Custodian hereunder and having become such
pursuant to the applicable provision of this Indenture.
"NOTES" has the meaning assigned to it in the preamble to this
Indenture.
"OFFICER" means the President, the Chief Executive Officer,
any Executive Vice President and the Chief Financial Officer of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers.
"OPINION OF COUNSEL" means an opinion from legal counsel who
is reasonably acceptable to the Trustee and that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to the
Company, any subsidiary of the Company, any Affiliate of the Company or the
Trustee.
"PARI PASSU INDEBTEDNESS" means Indebtedness of the Company
ranking PARI PASSU in right of payment with the Notes.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or CEDEL Bank, a Person who has an account with the Depositary, Euroclear or
CEDEL Bank, respectively (and, with respect to The Depositary Trust Company,
shall include Euroclear
and CEDEL Bank).
"PERMITTED HOLDER" means Metromedia Company, its general
partners and their respective Related Persons and Persons that would constitute
a Class B Permitted Holder as defined in the Company's Amended and Restated
Certificate of Incorporation.
"PERMITTED INVESTMENTS" means (a) any Investment in the
Company or in a Consolidated Subsidiary of the Company that is engaged entirely
or substantially entirely in a Telecommunications Business; (b) any Investment
in Cash Equivalents; (c) any Guarantee of Indebtedness of the Company or a
Restricted Subsidiary to the extent such Indebtedness is permitted under Section
4.09 hereof; and (d) any Investment by the Company or any of its Restricted
Subsidiaries in a Person, if as a result of such Investment (i) such Person
becomes a Consolidated Subsidiary of the Company that is engaged entirely or
substantially entirely in a Telecommunications Business or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Consolidated Subsidiary of the Company that is engaged entirely or substantially
entirely in a Telecommunications Business.
"PERMITTED LIENS" means (i) Liens to secure Indebtedness
permitted by clauses (e), (f), (g) and (h) of the second paragraph of Section
4.09 hereof or any Permitted Refinancing Indebtedness, PROVIDED that with
respect to Liens to secure Indebtedness permitted by clause (f) thereof or any
Permitted Refinancing Indebtedness of such Indebtedness, such Lien must cover
only the assets acquired with such Indebtedness; (ii) Liens in favor of the
Company or any Restricted Subsidiary; (iii) Liens on property of a Person
existing at the time such Person is merged with or into or consolidated with the
Company or any of its Restricted Subsidiaries, PROVIDED that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company or such Restricted Subsidiary; (iv) Liens on property existing
at the time of acquisition thereof by the Company or any of its Restricted
Subsidiaries, PROVIDED that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the Issue Date; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, PROVIDED that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) zoning restrictions, rights-of-way, easements and similar charges or
encumbrances incurred in the ordinary course which in the aggregate do not
detract from the value of the property thereof, and (ix) Liens incurred in the
ordinary course of business of the Company or any of its Restricted Subsidiaries
with respect to obligations that do not exceed $5.0 million at any one time
outstanding and that (a) are
not incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of business)
and (b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of business by
the Company or such Restricted Subsidiary.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); PROVIDED that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of such
Indebtedness or otherwise reasonably determined by the Company to be necessary
and reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is expressly subordinated in right of payment to, the Notes on terms at
least as favorable to the Holders of the Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iv) such Indebtedness is incurred solely by the
Company or the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and (v)
such Indebtedness is secured only by the assets, if any, that secured the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"PREFERRED STOCK" means any Equity Interest of any class or
classes of a Person (however designated) which is preferred as to payments of
dividends, or as to distributions upon any liquidation or dissolution, over
Equity Interests of any other class of such Person.
"PUBLIC EQUITY OFFERING" means an underwritten offering of
common stock of the Company for cash pursuant to an effective registration
statement under the
Securities Act.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness (including
Acquired Debt, in the case of leases, Capital Lease Obligations, mortgage
financings and purchase money obligations) incurred for the purpose of financing
all or any part of the cost of the engineering, construction, installation,
acquisition, lease (other than pursuant to a sale and leaseback of Existing
Assets), development or improvement of any Telecommunications Assets used by the
Company or any Restricted Subsidiary, in the case of Indebtedness incurred by
the Company, or any Foreign Subsidiary in the case of Indebtedness incurred by
any Foreign Subsidiary, 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.
"RECORD DATE" for the interest payable on any Interest Payment
Date means the June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"RELATED PERSON" means any Person who controls, is controlled
by or is under common control with a Permitted Holder; PROVIDED, that for
purposes of this definition "control" means the beneficial ownership of more
than 50% of the total voting power of a Person normally entitled to vote in the
election of directors, managers or trustees, as applicable, of a Person.
"RESPONSIBLE OFFICER," shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"RESTRICTED INVESTMENT" means any Investment other than a
Permitted Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary. Unless the context
specifically requires otherwise, Restricted Subsidiary means a direct or
indirect Restricted Subsidiary of the Company.
"SEC" means the Securities Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended
(or any
successor Act), and the rules and regulations promulgated thereunder (or
respective successor thereto).
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in effect
on the date hereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.12 hereof.
"STATED MATURITY" means, with respect to any installment of
interest or principal (including any mandatory sinking fund payment of interest
or principal) on any series of Indebtedness, the date on which such payment of
interest or principal (including any mandatory sinking fund payment of interest
or principal) was scheduled to be paid in the original documentation governing
such Indebtedness, and shall not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company
that is subordinated in right of payment by its terms or the terms of any
document or instrument or instrument relating thereto to the Notes, in any
respect.
"SUBSIDIARY" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"TELECOMMUNICATIONS ASSETS" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible, used
or intended for use in connection with a Telecommunications Business and the
Equity Interests of a Person engaged entirely or substantially entirely in a
Telecommunications Business.
"TELECOMMUNICATIONS BUSINESS" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased transmission facilities, (ii)
constructing, creating, developing or marketing communications related network
equipment, software and other devices for use in a telecommunications business
or (iii) evaluating, participating or pursuing any other activity or opportunity
that is primarily related to those identified in (i) or (ii) above;
PROVIDED, THAT, the determination of what constitutes a Telecommunications
Business shall be made in good faith by the Board of Directors of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as set forth in Section 9.03.
"TRUSTEE" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the
Company that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary at the time of such designation: (a) has no Indebtedness other than
Non-Recourse Debt; (b) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect obligation to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; and (c) has not Guaranteed
or otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries. Any such designation by
the Board of Directors shall be evidenced by filing with the Trustee a certified
copy of the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by the covenant described under Section 4.07
hereof. The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under the covenant described under Section 4.09 hereof calculated
on a pro forma basis as if such designation had occurred at the beginning of the
applicable reference period, and (ii) no Default or Event of Default would be in
existence following such designation.
"VOTING STOCK" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebted ness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
------------
"AFFILIATE TRANSACTION" 4.11
"ASSET SALE OFFER" 4.10
"AUTHENTICATION ORDER" 2.02
"CHANGE OF CONTROL OFFER" 4.14
"CHANGE OF CONTROL PAYMENT" 4.14
"CHANGE OF CONTROL PAYMENT DATE" 4.14
"COVENANT DEFEASANCE" 8.03
"DESIGNATION" 4.07
"EVENT OF DEFAULT" 6.01
"EXCESS PROCEEDS" 4.10
"INCUR" 4.09
"JUDGMENT CURRENCY" 12.15
LEGAL DEFEASANCE" 8.02
"OFFER AMOUNT " 3.09
"OFFER PERIOD" 3.09
"PAYING AGENT " 2.03
"PERMITTED INDEBTEDNESS" 4.09
"PURCHASE DATE" 3.09
"REGISTRAR " 2.03
"RESTRICTED PAYMENTS" 4.07
"REVOCATION" 4.07
SECTION 1.03 TRUST INDENTURE ACT DEFINITIONS
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used but not otherwise defined in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the meanings so assigned to
them.
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
SECTION 2.01 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of EXHIBITS A-1 and A-2 hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage or agreements to which the Company is subject. Each Note shall be dated
the date of its authentication. The Dollar Notes shall be in denominations of
$1,000 and integral multiples thereof. The Euro Notes shall be in denominations
of [EURO]1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) GLOBAL NOTES.
Dollar Notes issued in global form shall be substantially in
the form of EXHIBIT A-1 and Euro Notes issued in global form shall be
substantially in the form of EXHIBIT A-2 attached hereto (in both cases,
including the Global Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Dollar Notes issued in
definitive form shall be substantially in the form of EXHIBIT A-1 and Euro Notes
issued in definitive form shall be substantially in the form of EXHIBIT A-2
attached hereto (but, in both cases, without the Global Note Legends thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the aggregate principal
amount of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, repurchases and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.07 hereof.
(c) EUROCLEAR AND CEDEL BANK PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of CEDEL Bank" and "Customer Handbook" of CEDEL Bank shall
be applicable to transfers of beneficial interests in the Global Notes that are
held by
Participants through Euroclear or CEDEL Bank.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
Two Officers or one Officer and the Secretary or an Assistant
Secretary of the Company shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer, Secretary or Assistant Secretary whose
signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers or one officer and the Secretary or an Assistant Secretary of
the Company (an "AUTHENTICATION ORDER"), authenticate Notes for original issue
up to the aggregate principal amount stated in paragraph 4 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
[In authenticating such Notes, and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon:
(1) A copy of the resolution or resolutions of the Board
of Directors in or pursuant to which the terms and form of the Notes
were established, 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 as of the date of such certificate, and
if the terms and form of such Notes are established by an Officers'
Certificate pursuant to general authorization of the Board of
Directors, such Officers' Certificate;
(2) an executed supplemental indenture, if any is
required under the Indenture;
(3) an Officers' Certificate delivered in accordance
with Section 12.04, if required;
(4) an Opinion of Counsel, if any is required under the
Indenture, which shall state:
(i) that the form of such Notes has been established by a
supplemental indenture or by or pursuant to a resolution of the Board
of Directors and in conformity with the provisions of this Indenture;
(ii) that the terms of such Notes have been established in
accordance with Section 2.01 and in conformity with the other
provisions of this Indenture;
(iii) that such Notes, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
(iv) that all laws and requirements in respect of the
execution and delivery by the Company of such Notes have been complied
with.
The Trustee shall have the right to decline to authenticate
and deliver any Notes under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.]
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("REGISTRAR", which
term shall also include any co-registrar) and any office or agency where Notes
may be presented for payment ("PAYING AGENT"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "REGISTRAR" includes any co-registrar and the term "PAYING AGENT" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Dollar Global Notes.
The Company initially appoints The Bank of New York, London
branch, to act as the Depositary with respect to the Euro Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
The Trustee is authorized to enter into a letter of
representations with DTC in the form provided to the Trustee by the Company and
to act in accordance with such letter.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal and premium, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all such money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all such money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary)
shall have no further liability for the money. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
SECTION 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES, CERTIFICATED NOTES
Except as indicated below in this Section 2.06, the Notes
shall be represented only by Global Notes. The Global Notes shall be deposited
with a
Depositary for such Notes (and shall be registered in the name of such
Depositary or its nominee). The Depositary for the Dollar Notes shall be DTC
unless the Company appoints a successor Depositary by delivery of a Company
Order to the Trustee specifying such successor Depositary. The Depositary for
the Euro Notes shall be The Bank of New York, London branch, unless Euroclear
and CEDEL Bank appoint a successor Depositary (which shall be a Common
Depositary of Euroclear and CEDEL Bank).
All payments on a Dollar Global Note will be made to DTC or
its nominee, as the case may be, as the registered owner and Holder of such
Dollar Global Note. All payments on a Euro Global Note will be made to the order
of the Common Depositary or its nominee, as the case may be, as the registered
holder of such Euro Global Note. In each case, the Company will be fully
discharged by payment to or to the order of such Depositary from any
responsibility or liability in respect of each amount so paid. Upon receipt of
any such payment in respect of a Dollar Global Note, DTC will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Dollar Global
Note as shown on the records of DTC. The Common Depositary will instruct the
Euro Paying Agent to make payments in respect of the Euro Notes to Euroclear and
CEDEL Bank in amounts proportionate to their respective beneficial interests in
the principal amount of each Euro Global Note, and Euroclear and CEDEL Bank will
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Note as
shown on the records of Euroclear and CEDEL Bank.
Unless and until it is exchanged in whole or in part for
Definitive Notes, a Global Note may not be transferred except as a whole by the
relevant Depositary or nominee thereof to another nominee of the Depositary or
to a successor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Notes shall be
entitled or required, as the case may be, but only under the circumstances
described in this Section 2.06, to receive physical delivery of Definitive
Notes.
Interests in a Global Note shall be exchangeable or
transferable, as the case may be, for Definitive Notes if (i) in the case of a
Dollar Global Note, DTC notifies the Company that it is unwilling or unable to
continue as Depositary for such Dollar Global Note, or DTC ceases to be a
"Clearing Agency" registered under the United States Securities Exchange Act of
1934, and a successor depositary is not appointed by the Company within one
hundred twenty (120) days, (ii) in the case of a Euro Global Note, Euroclear and
CEDEL Bank notify the Company that they are unwilling or unable to continue as
clearing agencies for such Euro Global Note, (iii) in the case of a Euro Global
Note, the Common Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Euro Global Note, and a successor Common
Depositary
is not appointed within one hundred twenty (120) days or (iv) in the case of any
Global Note, an Event of Default has occurred and is continuing with respect
thereto and the owner of a beneficial interest therein requests such exchange or
transfer. Upon the occurrence of any of the events described in the preceding
sentence, the Company shall cause the appropriate Definitive Notes to be
delivered to the owners of beneficial interests in the Global Notes or the
Participants in DTC, Euroclear or CEDEL Bank through which such owners hold
their beneficial interest. Definitive Notes shall be exchangeable or
transferable for interests in other Definitive Notes as described herein.
SECTION 2.07 TRANSFER AND EXCHANGE
(a) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other provisions of this Section 2.07,
execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.11, 3.06, 3.09, 4.10, 4.14
and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 Business Days before the day of
the mailing of a notice of redemption or repurchase under Section 3.02
or 4.14 hereof, as applicable, and ending at the close of business on
such day, (B) to register the transfer of or to exchange any Note so
selected for redemption or repurchase in whole or in part, except the
unredeemed portion of any Note being redeemed or repurchased in part or
(C) to
register the transfer of or to exchange a Note between a Record Date
and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify the Trustee and
the Registrar against any liability that may result from the transfer,
exchange or assignment of such ▇▇▇▇▇▇'s Note in violation of any
provision of this Indenture and/or applicable United States federal or
state securities law.
(x) Neither the Trustee nor the Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Participants or beneficial
owners of interests in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by
the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(xi) Dollar Notes shall not be exchangeable for Euro Notes, or
vice versa.
(b) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
Upon surrender for registration of transfer of any Note of a
series to the appropriate Registrar, and subject to the other provisions of this
Section 2.07, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of such series of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, and subject to the other
provisions of this
Section 2.07, Notes of any series may be exchanged for other Notes of such
series of any authorized denominations and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, and subject to the other provisions
of this Section 2.07, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, and subject to the other provisions of this Section 2.07, entitled
to the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Depositary) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the appropriate Registrar and be
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection with
any registration of transfer or exchange of Notes.
(c) TRANSFER AND EXCHANGE OF DOLLAR GLOBAL NOTES.
Notwithstanding any provisions of this Indenture or the Notes,
transfers of a Dollar Global Note, in whole or in part, and transfers and
exchanges of interests therein shall be made only in accordance with this
Section 2.07. Transfers and exchanges subject to this Section 2.07 shall also be
subject to the other provisions of this Indenture that are not inconsistent with
this Section 2.07. A Dollar Global Note may not be transferred, in whole or in
part, to any Person other than DTC or a nominee thereof or a successor to DTC or
its nominee, and no such transfer to any such other Person may be registered. No
transfer of a Dollar Note of any series to any Person shall be effective under
this Indenture or the Dollar Notes of such series unless and until such Dollar
Note has been registered in the name of such Person. Nothing in this Section
2.07(c) shall prohibit or render ineffective any transfer of a beneficial
interest in a Dollar Global Note effected in accordance with the other
provisions of this Section 2.07.
(d) TRANSFER AND EXCHANGE OF EURO GLOBAL NOTES.
Notwithstanding any provisions of this Indenture or the Euro
Notes, transfers of a Euro Global Note, in whole or in part, and transfers and
exchanges of interests therein shall be made only in accordance with this
Section 2.07. Transfers and
exchanges subject to this Section 2.07 shall also be subject to the other
provisions of this Indenture that are not inconsistent with this Section 2.07. A
Euro Global Note may not be transferred, in whole or in part, to any Person
other than the Common Depositary or a nominee thereof or a successor Common
Depositary or its nominee, and no such transfer to any such other Person may be
registered; PROVIDED that this clause (i) shall not prohibit any transfer of a
Euro Note that is issued in exchange for a Euro Global Note but is not itself a
Euro Global Note. No transfer of a Euro Note to any Person shall be effective
under this Indenture or the Euro Notes unless and until such Euro Note has been
registered in the name of such Person. Nothing in this Section 2.07(d) shall
prohibit or render ineffective any transfer of a beneficial interest in a Euro
Global Note effected in accordance with the other provisions of this Section
2.07.
INTEREST IN EURO GLOBAL NOTE TO BE HELD THROUGH EUROCLEAR OR
CEDEL BANK. Interests in a Euro Global Note may be held only through Agent
Members acting for and on behalf of Euroclear and CEDEL Bank.
(e) GLOBAL NOTES. The provisions of clauses (i), (ii), (iii), and (iv)
below shall apply only to Global Notes;
(i) GENERAL. Each Global Note authenticated under this
Indenture shall be registered in the name of the appropriate Depositary
or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor.
(ii) TRANSFER TO PERSONS OTHER THAN DEPOSITARY.
Notwithstanding any other provision in this Indenture or the Notes, no
Global Note may be exchanged in whole or in part for Notes registered,
and no transfer of a Global Note in whole or in part may be registered,
in the name of any person other than the appropriate Depositary
or a nominee thereof unless (A) in the case of a Dollar Global Note,
DTC notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Note, or DTC ceases to be a "Clearing
Agency" registered under the United States Securities Exchange Act of
1934, and a successor depositary is not appointed by the Company within
one hundred twenty (120) days, (B) in the case of a Euro Global Note,
Euroclear and CEDEL Bank notify the Company that they are unwilling or
unable to continue as clearing agencies for such Euro Global Note, (C)
in the case of a Euro Global Note, the Common Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for
such Euro Global Note, and a successor Common Depositary is not
appointed within one hundred twenty (120) days or (D) in the case of
any Global Note, an Event of Default has occurred and is continuing
with respect thereto and the owner of a beneficial interest therein
requests such exchange or transfer. Any Global Note exchanged pursuant
to clause (A), (B) or (C) above shall be so exchanged in whole and not
in part and any Global Note exchanged pursuant to clause (D) above may
be exchanged in whole or from time to time in part as
directed by DTC. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note, PROVIDED that any such Note so
issued that is registered in the name of a Person other than the
appropriate Depositary or a nominee thereof shall not be a Global Note.
(iii) GLOBAL NOTE TO DEFINITIVE NOTE. Notes issued in exchange
for a Global Note or any portion thereof pursuant to clause (ii) above
shall be issued in definitive, fully registered form without interest
coupons, shall have an aggregate principal amount equal to that of such
Global Note or portion thereof to be so exchanged, shall be registered
in such names and be in such authorized denominations as the
appropriate Depositary shall designate and shall bear any legends
required hereunder. Any Global Note to be exchanged in whole shall be
surrendered by the appropriate Depositary to the Note Registrar. With
regard to any Global Note to be exchanged in part, either such Global
Note shall be so surrendered for exchange or, in the case of a Dollar
Global Note, if the Trustee is acting as custodian for DTC or its
nominee with respect to such Global Note or, in the case of a Euro
Global Note, if the Common Depositary is acting as Depositary for
Euroclear and CEDEL Bank, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged,
by means of an appropriate adjustment made on the records of the
Trustee, as Authenticating Agent, or of the Common Depositary. Upon any
such surrender or adjustment, the Trustee shall authenticate and
deliver the Note issuable on such exchange to or upon the order of the
appropriate Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the Trustee a supply of Definitive Notes in definitive,
fully registered form, without interest coupons, sufficient to meet the
Trustee's requirements hereunder.
(v) NO RIGHTS OF AGENT MEMBERS IN GLOBAL NOTE. No Agent Member
of any Depositary nor any other Persons on whose behalf Agent Members
may act (including Euroclear and CEDEL Bank and account Holders and
Participants therein) shall have any rights under the Indenture with
respect to any Global Note, or under any Global Note, and each
Depositary or its nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the applicable Depositary or such nominee,
as the case may be, or impair, as between DTC, Euroclear and CEDEL
Bank, their respective Agent Members and any other person on whose
behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
Holder of any Note.
(f) LEGENDS. The following legend shall appear on the face of all
Global Notes issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular
Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.12 hereof.
SECTION 2.08 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto, and may charge for its expenses (including the fees and expenses of the
Trustee and reasonable attorney's fees and expenses) in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
If any mutilated, lost, stolen or destroyed Note has become or
is about to become due and payable, the Company, in its sole discretion, may,
instead of issuing a new Note, pay such Note.
SECTION 2.09 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.10 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; HOWEVER, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser or protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.10 TREASURY NOTES
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.11 TEMPORARY NOTES
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.12 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return
cancelled Notes (subject to the record retention requirements of the Exchange
Act) to the Company upon a Company Order. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.13 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent Special Record Date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such Special Record Date and payment date, provided that no such Special
Record Date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the Special Record Date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the Special Record Date, the related payment date and the
amount of such interest to be paid. The defaulted interest shall be considered
paid upon deposit with the Trustee or the Paying Agent of an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted
interest, and interest on such defaulted interest shall thereafter cease to
accrue from that date. The Company may make payment of any defaulted interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or other trading market on which the securities of the Company are
listed or traded, and upon such notice as may be required by such exchange or
trading
market, if, after written notice given by the Company to the Trustee of the
proposed payment, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.14 ▇▇▇▇▇ AND ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" and/or "ISIN"
number (if then generally in use), and, if so, the Trustee and the Common
Depositary shall use CUSIP and/or ISIN numbers in notices of redemption as a
convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or the omission of such
numbers. The Company will promptly notify the Trustee and the Common Depositary
of any change in the CUSIP and/or ISIN numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed, (iv) the redemption price and (v) the CUSIP
numbers of the Notes to be redeemed.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed or purchased among the Holders
of the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a PRO RATA basis, by lot or in accordance with any other
method the Company considers fair and appropriate; provided that no Notes of
$1,000 or (U)1,000, as the case may be, or less shall be redeemed in part. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in
amounts of $1,000 or [Euro] 1,000, as the case may be, or whole multiples of
$1,000 or [Euro] 1,000, as the case may be; except that if all of the Notes
of a Holder are to be redeemed, the entire outstanding amount of Notes held
by such Holder, even if not a multiple of $1,000 or [Euro] 1,000, as the case
may be, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes (including any CUSIP
and/or ISIN number, if any) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
Prior to 12:00 noon New York City time on the redemption date,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Record Date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such Record Date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written, request, the Trustee shall
authenticate, for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) Except as set forth in Sections 3.07(b) and (c) below, the Notes
shall not be redeemable at the Company's option prior to December 15, 2004.
Thereafter, the Notes shall be subject to redemption at any time at the option
of the Company, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon to the
applicable redemption date (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 15 of the years indicated below:
PERCENTAGE
OF PRINCIPAL
YEAR AMOUNT
---- --------------------
2004............................................... [ ]%
2005............................................... [ ]%
2006............................................... [ ]%
2007 and thereafter................................ [ ]%
(b) Notwithstanding the foregoing, at any time prior to December 15,
2002, the Company may, on any one or more occasions, redeem up to 35% of the
aggregate principal amount of each of the Dollar Notes and the Euro Notes
(determined separately) originally issued pursuant to this Indenture at a
redemption price of [ ]% of the principal amount of the Dollar Notes and [ ]% of
the principal amount of the Euro Notes, in each case plus accrued and unpaid
interest thereon to the redemption date (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), with the Net Cash Proceeds received from any Public
Equity Offering made by the Company resulting in gross proceeds to the Company
of at least $100 million; PROVIDED that at least 65% of the aggregate principal
amount of the Dollar Notes and the Euro Notes (determined separately) originally
issued pursuant to this Indenture remain outstanding immediately after the
occurrence of any such redemption. The Company may make any such redemption upon
not less than 30 nor more than 60 days' notice (but in no event more than 90
days after the closing of the related Public Equity Offering).
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an Asset Sale Offer, it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "OFFER PERIOD"). No later than five
Business Days after the termination of the Offer Period (the "PURCHASE DATE"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "OFFER AMOUNT") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after a Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may only elect to have all of such Note purchased and may not elect
to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the aggregate
principal amount of the Note the Holder delivered for purchase and a statement
that such ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000 or
[Euro] 1,000, as the case may be, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before 12:00 noon New York City time on the Purchase
Date, the Company shall, to the extent lawful, accept for payment, on a PRO RATA
basis to the extent necessary, the Offer Amount or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09. The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company, shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of,
premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 12:00 noon New York City time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
Notwithstanding anything to the contrary in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in The City of New York and
London, and for so long as the Notes are listed on the Luxembourg Stock
Exchange, in Luxembourg, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands (other than service of
process) to or upon the Company in respect of the Notes 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 hereby initially designates (i) the
Trustee at its address set forth in Section 12.02 hereof as its office or agency
in New York, for such purposes, (ii)The Bank of New York, London branch, as its
office or agency in London for such purposes, and (iii) [Luxembourg Paying
Agent], at its office or agency in Luxembourg for such purposes.
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
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York and, for so
long as the Notes are listed on the Luxembourg Stock Exchange, in Luxembourg,
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and any change in the location of any such
other office or agency.
SECTION 4.03 REPORTS.
Whether or not required by the rules and regulations
of the SEC, so long as any Notes are outstanding, the Company will furnish to
the Trustee and the Holders of the Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such reports, in
each case within the time periods specified in the SEC's rules and regulations.
RIDER 4.03
----------
Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates). The Company
shall at all times comply with TIA Section 314(a).
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year, beginning 2000, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 hereof shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within five days upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05 TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
through no such law has been enacted.
SECTION 4.07 RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of its Restricted Subsidiaries' Equity Interests or to the direct or
indirect holders of the Company's or any of its Restricted Subsidiaries' Equity
Interests in their capacity as stockholders (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or to the Company or a Restricted Subsidiary of the Company); (ii)
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company or any of its Restricted Subsidiaries or any direct or indirect
parent of the Company (other than any such Equity Interests owned by the Company
or any Consolidated Subsidiary of the Company); (iii) make any payment on or
with respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Subordinated Indebtedness, except a payment of interest or principal
at Stated Maturity; or (iv) make any Restricted Investment (all such payments
and other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless:
(a) at the time of and after giving effect to such
Restricted Payment, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof,
(b) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to either clause (i) or
(ii) of the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries on and after the Issue
Date (excluding Restricted Payments permitted by, and made
pursuant to, clauses (ii) and (iii) and (viii) of the next
succeeding paragraph), is less than the sum, without
duplication and except as credited in the next succeeding
paragraph, of (i) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period)
beginning on the last day of the fiscal quarter immediately
preceding the Issue Date and ending on the last day of the
fiscal quarter immediately preceding the date of such
Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate Net Cash Proceeds received by the
Company on and after November 25, 1998 as a Capital
Contribution or from the issue or sale of Equity Interests of
the Company
(other than Disqualified Stock) or from the issue or sale of
Disqualified Stock or debt securities of the Company that
have been converted or exchanged into such Equity Interests
(other than Equity Interests (or Disqualified Stock or
converted debt securities) sold to a Subsidiary of the
Company), plus the amount of Net Cash Proceeds received by
the Company upon such conversion or exchange, plus (iii) the
aggregate amount equal to the net reduction in Investments
in Unrestricted Subsidiaries on and after the Issue Date
resulting from (x) dividends, distributions, interest
payments, return of capital, repayments of Investments or
other transfers of assets to the Company or any Restricted
Subsidiary from any Unrestricted Subsidiary, (y) proceeds
realized by the Company or any Restricted Subsidiary upon
the sale of such Investment to a Person other than the
Company or any Subsidiary of the Company, or (z) the
redesignation of any Unrestricted Subsidiary as a Restricted
Subsidiary, not to exceed in the case of any of the
immediately preceding clauses (x), (y) or (z) the aggregate
amount of Restricted Investments made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary on and
after the Issue Date, plus (iv) to the extent that any
Restricted Investment that was made on and after the Issue
Date is sold for cash or otherwise liquidated or repaid for
cash, the lesser of, to the extent paid to the Company or a
Restricted Subsidiary, (A) the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such
Restricted Investment.
The foregoing provisions will not prohibit (i) the payment
of any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the foregoing
provisions; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the Net Cash Proceeds of the substan tially
concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests
of the Company (other than any Disqualified Stock); PROVIDED that the amount of
any such Net Cash Proceeds that are utilized for, and the Equity Interests
issued or exchanged for, any such redemption, repurchase, retirement, defeasance
or other acquisition shall be excluded from clause (c) of the preceding
paragraph and each other clause of this paragraph; (iii) the defeasance,
redemption, retirement, repurchase or other acquisition of Subordinated
Indebtedness with the Net Cash Proceeds from, or issued in exchange for, a
substantially concurrent incurrence of Permitted Refinancing Indebtedness;
PROVIDED that the amount of any such Net Cash Proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (c) of the preceding paragraph and each other clause of
this paragraph; (iv) the payment of any dividend or other distribution by a
Restricted Subsidiary of the Company to the holders of its Equity Interests on a
pro rata basis; (v)
the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any of its Restricted Subsidiaries held by
any member of the Company's or such Restricted Subsidiary's management; PROVIDED
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $1.0 million in any fiscal year; (vi)
retiring any Equity Interests of the Company to the extent necessary (as
determined in good faith by a majority of the disinterested members of the Board
of Directors, whose determination shall be evidenced by a resolution thereof) to
prevent the loss, or to secure the renewal or reinstatement, of any license or
franchise held by the Company or any Restricted Subsidiary from any governmental
agency; (vii) Investments in Telecommunications Assets, PROVIDED that the
aggregate fair market value (measured on the date each such Investment was made
or returned, as applicable), when taken together with all other Investments made
pursuant to this clause (vii) that are at the time outstanding, does not exceed
the sum of (y) $15.0 million, plus (z) the aggregate amount equal to the net
reduction in Investments made pursuant to this clause (vii) on and after the
Issue Date resulting from dividends, distributions, interest payments, return of
capital, repayments of such Investments or Net Cash Proceeds realized by the
Company or any Restricted Subsidiary upon the sale of such Investment to a
Person other than the Company or any Subsidiary of the Company, except to the
extent any such net reduction amount is included in the amount calculated
pursuant to clause (c) of the preceding paragraph or any other clause of this
paragraph; (viii) Investments in Telecommunications Assets made after November
25, 1998 with the (x) Net Cash Proceeds, (y) the fair market value of
Telecommunications Assets or (z) Equity Interests of a Person that becomes a
Restricted Subsidiary (PROVIDED that the assets of such Person consist entirely
or substantially entirely of Telecommunications Assets), in each case, received
from the issuance or sale (other than to a Subsidiary of the Company) of Equity
Interests of the Company (other than any Disqualified Stock) PROVIDED, that the
amount of any such Net Cash Proceeds that are utilized for any such Investment
shall be excluded from clause (c) of the preceding paragraph and each other
clause of this paragraph; (ix) Investments in ION, PROVIDED that the aggregate
fair market value thereof (measured on the date each such Investment was made or
returned, as applicable), when taken together with all other Investments made
pursuant to this clause (ix) does not exceed the sum of (I) $15.0 million, plus,
(II) for each fiscal year, an amount equal to the amount of cash received by the
Company or any of its Restricted Subsidiaries from ION or any of its
Subsidiaries during such fiscal year, except to the extent any such amount is
included in the amount calculated pursuant to clause (c) of the preceding
paragraph or any other clause of this paragraph, plus (III), to the extent
necessary to pay reasonable and necessary operating expenses of ION, an amount
not to exceed $1.0 million in each fiscal year; and (x) Investments in the
German Joint Venture, PROVIDED that the aggregate fair market value (measured on
the date each such Investment was made or returned, as applicable), when taken
together with all other Investments made pursuant to this clause (x) that are at
the time outstanding, does not exceed the sum of (y) $100.0 million, plus (z)
the aggregate amount equal to the net reduction in Investments made pursuant to
this clause (x) on and after the Issue Date resulting from dividends,
distributions, interest payments, return of capital, repayments of such
Investments or Net Cash Proceeds realized by the Company or any Restricted
Subsidiary upon the sale of such Investment to a Person other than the Company
or any Subsidiary of the Company, except to the extent such amount is included
in the amount calculated pursuant to clause (c) of the preceding paragraph or
any other clause of this paragraph.
The Board of Directors may not designate any Subsidiary of the
Company (other than a newly created Subsidiary in which no Investment has
previously been made (other than any de minimus amount required to capitalize
such Subsidiary in connection with its organization)) as an Unrestricted
Subsidiary (a "Designation") unless: (i) no Default or Event of Default shall
have occurred and be continuing at the time of or after giving effect to such
Designation; (ii) the Company would, immediately after giving effect to such
Designation, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of
Section 4.09 hereof and (iii) the Company would not be prohibited under the
Indenture from making an Investment at the time of such Designation (assuming
the effectiveness of such Designation for purposes of this Section 4.07) in an
amount equal to the fair market value of the net Investment of the Company and
all Restricted Subsidiaries in such Subsidiary on such date.
In the event of any such Designation, all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary so designated will be deemed to be an Investment made as of the time
of such Designation and will reduce the amount available for Restricted Payments
under the first or second paragraph of this covenant, as applicable. All such
outstanding Investments will be deemed to constitute Restricted Payments in an
amount equal to the fair market value of such Investments at the time of such
Designation.
A Designation may be revoked and an Unrestricted Subsidiary
may thus be redesignated a Restricted Subsidiary (a "Revocation") by a
resolution of the Board of Directors delivered to the Trustee; PROVIDED that the
Company will not make any Revocation unless: (i) no Default or Event of Default
shall have occurred and be continuing at the time of or after giving effect to
such Designation; and (ii) all Liens and Indebtedness 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
under this Indenture.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company (or such
Restricted Subsidiary, as the case may be) pursuant to the Restricted Payment.
The fair market value of any asset(s) or securities that are required to be
valued by this covenant shall be determined in good faith by the Board of
Directors (such determination to be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if such fair market value exceeds $15.0 million).
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness owed to the Company or any
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries. However, the
foregoing restrictions shall not apply to encumbrances or restrictions existing
under or by reason of (a) Existing Indebtedness as in effect on the Issue Date,
(b) this Indenture, the Notes and the Exchange Notes, and Indebtedness ranking
PARI PASSU with the Notes provided such provisions are no more restrictive than
the Notes (c) the Credit Agreement and any Foreign Subsidiary Credit Agreement,
PROVIDED that the restrictions contained in the Credit Agreement are no more
restrictive, taken as a whole, than those contained in a credit agreement with
terms that are commercially reasonable for a borrower that has substantially
comparable Indebtedness and PROVIDED, FURTHER, that no such provision in the
Credit Agreement shall prohibit or restrict the ability of any Restricted
Subsidiary to pay dividends or make other upstream distributions or other
payments to the Company or any of its Restricted Subsidiaries, (d) applicable
law, (e) any instrument governing Indebtedness or Capital Stock of a Person or
assets acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired; PROVIDED, that in the case of Indebtedness, such
Indebtedness was permitted by the terms of the Indenture to be incurred, (f)
customary non-assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (g) purchase money
obligations (including pursuant to Purchase Money Indebtedness obligations) for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired,
constructed, leased or improved, (h) any agreement for the sale or other
disposition of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition, PROVIDED that the
consummation of such transaction would not result in an Event of Default or an
event that, with the passing of time or giving of notice or both, would
constitute an Event of Default, that such restriction terminates if such
transaction is not consummated and that the consummation
or abandonment of such transaction occurs within one year of the date such
agreement was entered into, (i) Permitted Refinancing Indebtedness, PROVIDED
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, (j) Liens securing
Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 hereof
that limit the right of the Company or any of its Restricted Subsidiaries to
dispose of the assets subject to such Lien, (k) provisions with respect to the
disposition or distribution of assets or property in joint venture agreements
and other similar agreements entered into in the ordinary course of business,
and (l) restrictions on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business.
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (including by way of merger, consolidation or
acquisition), with respect to (collectively, "incur") any Indebtedness and the
Company shall not issue or incur any Disqualified Stock and shall not permit any
of its Restricted Subsidiaries to issue or incur any shares of Preferred Stock;
PROVIDED, HOWEVER, that the Company may incur Indebtedness or issue or incur
shares of Disqualified Stock and its Restricted Subsidiaries may incur Acquired
Debt or Acquired Preferred Stock if either:
(i) the Consolidated Leverage Ratio at the end of the
Company's most recently ended fiscal quarter (the "Reference
Period") for which a consolidated balance sheet of the Company
is available immediately preceding the date on which such
additional Indebtedness is incurred or such Preferred Stock is
issued or incurred would have been less than 5.5 to 1.0 (if
the Reference Period ends on or prior to December 31, 2001),
or 5.0 to 1.0 (if the Reference Period ends subsequent to
December 31, 2001), determined on a pro forma basis
(including, a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been
incurred, or the Preferred Stock had been issued, as the case
may be, at the beginning of the Reference Period; or
(ii) the Consolidated Capital Ratio at the end of the
Reference Period would have been less than 2.0 to 1.0,
determined after giving effect to the incurrence or issuance
of such Indebtedness or Preferred Stock and on a pro forma
basis (including a pro forma application of the net proceeds
therefrom).
Notwithstanding the foregoing, the provisions of the paragraph
set forth immediately above will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, "Permitted Indebtedness"):
(a) the incurrence by the Company of Indebtedness
represented by the Notes and the Exchange Notes;
(b) the incurrence by the Company or any of its Restricted
Subsidiaries of Existing Indebtedness;
(c) the incurrence of Indebtedness by the Company to any
Consolidated Subsidiary or Indebtedness of any Restricted
Subsidiary to the Company or any Consolidated Subsidiary (but
such Indebtedness shall be deemed to be incurred upon such
Indebtedness being held by any person other than the Company or
such Consolidated Subsidiary including upon Designation and upon
such Restricted Subsidiary otherwise no longer being a
Consolidated Subsidiary); PROVIDED that in the case of
Indebtedness of the Company, such obligations shall be unsecured
and subordinated in all respects to the Company's obligations
pursuant to the Notes;
(d) the incurrence by the Company of Indebtedness in an
aggregate amount incurred and outstanding at any time pursuant to
this clause (d) (plus any Permitted Refinancing Indebtedness
incurred pursuant to clause (j) hereof to retire, defease,
refinance, replace or refund such Indebtedness) of up to $25
million;
(e) the incurrence by the Company, or any Guarantee thereof
by any Restricted Subsidiary (other than any Foreign Subsidiary),
of Indebted ness pursuant to the Credit Agreement in an aggregate
amount incurred and outstanding at any time pursuant to this
clause (e) (plus any Permitted Refinancing Indebtedness incurred
pursuant to clause (j) hereof to retire, defease, refinance,
replace or refund such Indebtedness) of up to $300 million, minus
the amount of any such Indebtedness (i) retired with the Net Cash
Proceeds from any Asset Sale applied to permanently reduce the
outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 4.10 hereof or (ii) assumed by a
transferee in an Asset Sale;
(f) the incurrence by the Company or any of its Foreign
Subsidiaries of Purchase Money Indebtedness; PROVIDED that in
each case, such Indebtedness shall not constitute more than 100%
of the cost (deter mined in accordance with GAAP in good faith by
the Board of
Directors of the Company) to the Company or such Foreign
Subsidiary, as applicable, of the property so purchased,
developed, acquired, constructed, improved or leased;
(g) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the
purpose of fixing or hedging interest or foreign currency
exchange rate risk with respect to any floating rate Indebtedness
or foreign currency based Indebtedness, respectively, that is
permitted by the terms of the Indenture to be outstanding;
PROVIDED that the notional amount of any such Hedging Obligation
does not exceed the amount of Indebtedness or other liability to
which such Hedging Obligation relates;
(h) the incurrence by a Foreign Subsidiary of Indebtedness
pursuant to a Foreign Subsidiary Credit Agreement (or any
Guarantee thereof by any other Foreign Subsidiary) in an
aggregate principal amount incurred and outstanding at any time
pursuant to this clause (h) (plus any Permitted Refinancing
Indebtedness incurred pursuant to clause (j) hereof to retire,
defease, refinance, replace or refund such Indebtedness) of up to
$150.0 million (or the equivalent thereof at the time of
incurrence in the applicable foreign currencies), minus the
amount of any such Indebtedness (i) retired with the Net Cash
Proceeds from any Asset Sale applied to permanently reduce the
outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 4.10 hereof or (ii) assumed by a
transferee of an Asset Sale;
(i) the Company and its Restricted Subsidiaries may incur
Indebtedness solely in respect of bankers acceptances, letters of
credit and performance bonds, all in the ordinary course of
business in accordance with customary industry practices, in
amounts and for the purposes customary in the Company's industry
(other than to the extent supporting Indebtedness); and
(j) the incurrence by the Company or any of its Restricted
Subsidiaries, as applicable, of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are
used to refund, refinance or replace Indebtedness that was
incurred pursuant to the first paragraph hereof or clauses (a),
(b), (d), (e), (f), (h) or this clause (j) of this paragraph.
Indebtedness or Preferred Stock of any Person which is
outstanding at the time such Person becomes a Restricted Subsidiary of the
Company (including upon designation of any Subsidiary or other Person as a
Restricted Subsidiary or upon a
Revocation such that such Subsidiary becomes a Restricted Subsidiary) or is
merged with or into or consolidated with the Company or a Restricted Subsidiary
of the Company shall be deemed to have been incurred at the time such Person
becomes such a Restricted Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Restricted Subsidiary of the Company, as
applicable.
Upon each incurrence, the Company may designate pursuant to
which provision of this covenant such Indebtedness is being incurred and such
Indebtedness shall not be deemed to have been incurred by the Company under any
other provision of this covenant, except as stated otherwise in the foregoing
provisions.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, incur any Indebtedness (including Permitted
Indebtedness) that is contractually subordinated in right of payment to any
other Indebtedness of the Company unless such Indebtedness is also contractually
subordinated in right of payment to the Notes on substantially identical terms;
PROVIDED, HOWEVER, that no Indebtedness of the Company shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured.
SECTION 4.10 ASSET SALES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale,
unless (i) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (as determined in good faith by the Board of Directors (including
as to the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Telecommunications
Assets, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the permanent redemption or repurchase of outstanding Indebtedness (other than
Subordinated Indebtedness) that is secured Indebtedness (including that in the
case of a revolver or similar arrangement that makes credit available, such
commitment is so permanently reduced by such amount) or Indebtedness of the
Company or such Restricted Subsidiary that ranks equally with the Notes but has
a maturity date that is prior to the maturity date of the Notes and/or (b) to
reinvest such Net Cash Proceeds (or any portion thereof) in Telecommunica tions
Assets. Notwithstanding anything herein to the contrary, with respect to the
reinvestment of Net Cash Proceeds, only proceeds from an Asset Sale of assets,
or Equity Interests, of a Foreign Subsidiary may be used to retire Indebtedness
of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign
Subsidiary. The balance of such Net Cash
Proceeds, after the application of such Net Cash Proceeds as described in the
immediately preceding clauses (a) and (b), shall constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds equals or exceeds
$15.0 million (taking into account income earned on such Excess Proceeds), the
Company will be required to make a pro rata offer to all Holders of Notes and
PARI PASSU Indebtedness with comparable provisions requiring such Indebtedness
to be purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") to
purchase the maximum principal amount or accreted value in the case of
Indebtedness issued with an original issue discount of Notes and PARI PASSU
Indebtedness that may be purchased out of the Excess Proceeds, at a purchase
price in cash in an amount equal to 100% of the principal amount thereof or the
accreted value thereof, as applicable, plus accrued and unpaid interest thereon
to the date of purchase (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date), in accordance with the procedures set forth in Article 3 of this
Indenture and the agreements governing such PARI PASSU Indebtedness. To the
extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
PARI PASSU Indebtedness tendered into such Asset Sale Offer surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and PARI PASSU Indebtedness to be purchased on a pro rata basis in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness. Upon completion of such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero for purposes of the first sentence of
this paragraph.
The amount of (x) any liabilities (as shown on the Company's
(or such Restricted Subsidiary's, as the case may be) most recent balance
sheet), other than Subordinated Indebtedness of the Company or any Restricted
Subsidiary that are assumed by the transferee of any such assets pursuant to an
agreement that immediately releases the Company and all of its Restricted
Subsidiaries from all liability in respect thereof, (y) Indebtedness of any
Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of
such Asset Sale, if the Company and all of its Restricted Subsidiaries are
immediately released from all Guarantees of payment of such Indebtedness and
such Indebtedness is no longer the liability of the Company or any of its
Restricted Subsidiaries, and (z) any securities, notes or other obligations
received by the Company (or such Restricted Subsidiary, as the case may be) from
such transferee that are contemporaneously (subject to ordinary settlement
periods) converted by the Company (or such Restricted Subsidiary, as the case
may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash
Equivalents received), will be deemed to be cash and/or Cash Equivalents for
purposes of this provision.
To the extent that the provisions of any securities laws or
regulations shall
conflict with the Asset Sale provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under the Asset Sale provisions of this
Indenture by virtue thereof.
SECTION 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (ii) with respect to any
Affiliate Transaction or series of related Affiliate Transactions (A) involving
aggregate consideration in excess of $5.0 million, the Company delivers to the
Trustee a resolution of the Board of Directors set forth in an Officers'
Certificate that such Affiliate Transaction is approved by a majority of the
disinterested members of the Board of Directors and that, except with respect to
matters governed by the Management Agreement, certifying that such Affiliate
Transaction complies with clause (i) above and is in the best interests of the
Company or such Restricted Subsidiary and (B) if involving aggregate
consideration in excess of $15.0 million, a favorable written opinion as to the
fairness to the Company of such Affiliate Transaction from a financial point of
view is also obtained by the Company from an accounting, appraisal or investment
banking firm of national standing. Notwithstanding the foregoing, the following
items shall not be deemed to be Affiliate Transactions: (i) (a) the entering
into, maintaining or performance of any employment contract, collective
bargaining agreement, benefit plan, program or arrangement, related trust
agreement or any other similar arrangement for or with any employee, officer or
director heretofore or hereafter entered into in the ordinary course of
business, including vacation, health, insurance, deferred compensation,
retirement, savings or other similar plans, (b) the payment of compensation,
performance of indemnification or contribution obligations, or an issuance,
grant or award of stock, options, or other equity-related interests or other
securities, to employees, officers or directors in the ordinary course of
business, (c) any transaction with an officer or director in the ordinary course
of business not involving more than $100,000 in any one case, or (d) Management
Advances and payments in respect thereof, (ii) transactions between or among the
Company and/or its Restricted Subsidiaries, (iii) payment of reasonable
directors fees, (iv) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company, (v) Affiliate Transactions in effect or
approved by the Board of Directors on the Issue Date, including any amendments
thereto (PROVIDED that the terms of such amendments are not materially less
favorable to the Company than the terms of such agreement prior to such
amendment), (vi) transactions with respect to capacity between the Company or
any
Restricted Subsidiary and any Unrestricted Subsidiary or other Affiliate and
joint sales and marketing pursuant to an agreement or agreements between the
Company or any Restricted Subsidiary and any Unrestricted Subsidiary or other
Affiliate (PROVIDED that in the case of this clause (vi), such agreements are on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that could have been obtained at the time of such
transaction in an arm's-length transaction with an unrelated third party or, in
the case of a transaction with an Unrestricted Subsidiary, ION or another
Affiliate, are either (x) entered into in connection with a transaction
involving the selection by a customer of cable system capacity entered into in
the ordinary course of business or (y) involve the provision by the Company or a
Restricted Subsidiary to an Unrestricted Subsidiary, ION or another Affiliate of
sales and marketing services, operations, administra tion and maintenance
services or development services for which the Company or such Restricted
Subsidiary receives a fair rate of return (as determined by the Board of
Directors and set forth in an Officers' Certificate delivered to the Trustee)
above its expenses of providing such services), and (vii) Restricted Payments
that are permitted by Section 4.07 hereof.
SECTION 4.12 LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind
(other than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired, or upon any income or profits therefrom unless all payments
due under this Indenture and the Notes are secured (except as provided in the
next clause) on an equal and ratable basis with the obligations so secured and
no Lien shall be granted or be allowed to exist which secures Subordinated
Indebtedness except with respect to Acquired Debt, in which case, however, such
Liens must be made junior and subordinate to the Liens granted to the Holders of
the Notes.
SECTION 4.13 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
SECTION 4.14 CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to purchase all or any part
(equal to $1,000 or (U)1,000, as the case may be, or an integral multiple
thereof, as the case may be) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at a purchase price in cash
equal to 101% of the aggregate principal amount thereof (the "Change of Control
Payment") plus accrued and unpaid interest thereon to the date of purchase
(subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date), PROVIDED, however,
that the Company shall not be obligated to repurchase Notes pursuant to this
covenant in the event that it has exercised its rights to redeem all of the
Notes as describe in Section 3.07 hereof. Within 30 days following any Change of
Control, the Company will mail a notice to each Holder (with a copy to the
Trustee) describing the transaction or transactions that constitute the Change
of Control and offering to purchase Notes on the date specified in such notice,
which date shall be no earlier than 30 and no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date"), in accordance with
the procedures required by this Indenture and described in such notice.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations to the
extent such laws and regulations are applicable in connection with the purchase
of Notes as a result of a Change of Control. To the extent that the provisions
of any securities laws or regulations conflict with any of the provisions of
this Section 4.14, the Company will comply with the applicable securities laws
and regulations and will be deemed not to have breached its obligations under
this covenant by virtue thereof.
(b) On the Change of Control Payment Date, the Company
will, to the extent lawful, (1) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (2)
deposit with the Paying Agent an amount equal to the Change of Control
Payment plus accrued and unpaid interest thereon, in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent will promptly mail or deliver to each Holder of
Notes so tendered the Change of Control Payment plus accrued and unpaid
interest thereon, for such Notes, and upon written direction of the Company,
the Trustee will promptly authenticate and mail or deliver (or cause to be
transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of Notes surrendered, if any; PROVIDED that
each such new Note will be in a principal amount of $1,000 or [Euro] 1,000,
as the case may be, or an integral multiple thereof, as the case may be. The
Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary set forth in this
Section 4.14, the Company shall not be required to make a Change of Control
Offer upon the occurrence of a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 4.14, and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.15 BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage, to more than a de minimus extent, in any
business other than a Telecommunica tions Business.
SECTION 4.16 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Restricted Subsidiaries
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or is paid to all Holders of the Notes that consent, waive or agree
to amend such terms or provisions of this Indenture or the Notes in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
SECTION 4.17 MONEY FOR PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal, premium or interest with
respect to the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal, premium or
interest with respect to the Notes, deposit with a Paying Agent a sum in same
day funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal, premium or interest so becoming due (or at the option of the Company,
payment of interest may be mailed by check to the Holders of the Notes at their
respective addresses set forth in the register of Holders of Notes; PROVIDED
that all payments with respect to Notes represented by one or more permanent
global Notes will be paid by wire transfer of immediately available funds to
the account of the Depository Trust Company in the case of the Dollar Notes, or
any successor thereto, or to the Common Depositary, in the case of the Euro
Notes, or any successor thereto) 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 will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee written notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of principal,
premium or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and obligations of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal, premium or
interest with respect to a Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company at the written request of the Company or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent,
before being required to make any such repayment, shall at the expense of the
Company cause notice to be promptly sent to each Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification any unclaimed balance of such money
then remaining will be repaid to the Company.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
(a) The Company shall not, directly or indirectly, consolidate
or merge with or into (whether or not the Company is the surviving corporation),
or sell, assign, transfer, convey or otherwise dispose of all or substantially
all of its properties or assets, in one or more related transactions, to another
Person unless: (i) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Registration Rights Agreement, the Notes, the Exchange Notes
and this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) no Default or Event of Default ( or an event
that, with the passing of time or giving of notice or both, would constitute an
Event of Default) shall exist or shall occur immediately after giving effect on
a pro forma basis to such transaction; (iv) except in the case of a merger of
the Company with or into a Wholly Owned Restricted Subsidiary of the Company,
the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made will immediately after such
transaction and after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to either clause (i) or (ii) of the first paragraph of Section 4.09 hereof; (v)
if, as a result of any such transaction, property or assets of the Company would
become subject to a Lien subject to the provisions of Section 4.12 hereof, the
Company or the successor entity to the Company shall have secured the Notes as
required by said covenant; and (vi) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture (if any)
comply with the Indenture. The Company shall not, directly or indirectly, lease
all or substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this covenant will not be
applicable to a sale,
assignment, transfer, conveyance or other disposition of assets solely between
or among the Company and its Wholly Owned Restricted Subsidiaries.
(b) For purposes of this Article 5, the transfer (by
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
hereof, the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to and (except
in the case of a lease) be substituted for (so that from and after the date of
such consolidation, merger or transfer, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor Person and not
to the Company), and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
herein as the Company, and (except in the case of a lease) the Company shall be
released from the obligations under the Notes and this Indenture except with
respect to any obligations that arise from, or are related to, such transaction.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
"Event of Defaults" are:
(i) default for 30 days in the payment when due of interest
on the Notes;
(ii) default in the payment when due of the principal of, or
premium, if any, on the Notes;
(iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Sections 4.10 or 4.14;
(iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to comply with any of
its other agreements in this Indenture or the Notes;
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiar ies) whether such
Indebtedness or Guarantee now exists, or is created after the Issue
Date, which default results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the amount of any such
Indebtedness, together with the amount of any other such Indebtedness
or the maturity of which has been so accelerated, aggregates $15.0
million or more;
(vi) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments not subject to appeal aggregating
in excess of $15.0 million (net of applicable insurance coverage which
is acknowledged in writing by the insurer), which judgments are not
paid, vacated, discharged or stayed for a period of 60 days;
(vii) the Company or any of its Restricted Subsidiaries:
(a) commences a voluntary case under any Bankruptcy Law,
(b) consents to the entry of an order for relief against
it in an involuntary case under any Bankruptcy Law,
(c) consents to the appointment of a custodian of it or
for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due;
and
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Restricted Subsidiaries
(b) appoints a custodian of the Company or any of its
Restricted Subsidiaries or for all or substantially all of
the property of the Company or any of its Restricted
Subsidiaries; or
(c) orders the liquidation of the Company or any of its
Restricted Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02 ACCELERATION
If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (vii)
or (viii) of Section 6.01 hereof occurs with respect to the Company, any of its
Restricted Subsidiaries that constitutes a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes (or, with respect to a provision of this
Indenture that may only be amended by the Holders of not less than 662/3% in
aggregate principal amount of the then outstanding Notes, the Holders of not
less than 662/3% in aggregate principal amount of the then outstanding Notes) by
written notice to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of the principal
of, premium, if any, or interest on, the Notes (including in connection with an
offer to purchase). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Default or
impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Holders of Notes may not enforce this Indenture or the Notes
except as provided herein. Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
and interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to participate as a member, voting or otherwise,
of any official committee of creditors appointed in such matter and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disburse ments and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out
the money in the following order:
FIRST: to the Trustee, its agents and counsel for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively, and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the cost of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the occurrence and continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of be opinions expressed therein, upon certificates (or
similar documents) or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall
examine the certificates (or similar documents) and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein or otherwise
verify the contents thereof).
(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was grossly negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at be
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or expense
including reasonable attorneys' fees that might be incurred by it in compliance
with such request or direction.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any such document. The
Trustee shall receive and retain financial reports and statements of the Company
as provided herein, but it shall have no duty to review or analyze such reports
or statements to determine compliance with covenants or other obligations of the
Company.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any such attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request. direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default which may have occurred, 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, order, approval, bond or other paper or document unless requested in
writing to do so by the Holders representing more than 25% in aggregate
principal amount of Notes then outstanding; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
indemnity reasonably satisfactory to it
against such cost, expense or liability as a condition to so proceeding.
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(i) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
(a) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) If a Default or Event of Default occurs and is continuing and if it
is known
to the Trustee in accordance with the provisions of paragraph (a) of this
Section 7.05, the Trustee shall mail to Holders of Notes a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and any predecessor
Trustee and hold it harmless against any and all losses, liabilities or
expenses, including taxes (other than taxes based upon, measured by, or
determined by the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld or delayed.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01 (vii) or (viii) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor ▇▇▇▇▇▇▇ does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311 (a), excluding any
creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311 (a) to the extent indicated
therein.
SECTION 7.12 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 in writing with the Company.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its obligations
under such Notes and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments delivered to it by the
Company acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding
Notes to receive payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due from the trust referred to
below; (b) the Company's obligations with respect to the Notes concerning
mutilated, destroyed, lost or stolen Notes and the maintenance of an office or
agency for payment and money for security payments held in trust; (c) the
rights, powers, trusts, duties and immunities of the Trustee, and the Company's
obligations in connection therewith; and (d) the Legal Defeasance provisions of
this Indenture. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Article V and in Sections
4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(iii) through 6.01(vi) hereof shall not constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit, or cause to be deposited,
with the
Trustee, in trust, for the benefit of the Holders of the Notes, (a) cash in U.S.
dollars, non-callable Government Securities, or a combination thereof (with
respect to the Dollar Notes) and (b) legal tender in the countries constituting
the European Union, EEA Government Obligations, or a combination thereof (with
respect to the Euro Notes), in all cases in such amounts as will be sufficient,
in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated maturity thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to a particular redemption date;
(b) in the case of Legal Defeasance, the Company must deliver to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that, since the Issue Date, the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or there has
been a change in the applicable United States federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or
loss for United States federal income tax purposes as a result of such Legal
Defeasance, and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company must deliver to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such Covenant Defeasance, and such Holders will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Events of Default from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of the Notes over other creditors of the Company, or with
the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
(g) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel in the United States reasonably acceptable to the
Trustee, each stating that the conditions precedent provided for or relating to
Legal Defeasance or Covenant Defeasance, as applicable, in the case of the
Officers' Certificate, in clauses (a) through (f) and, in the case of the
Opinion of Counsel, in clauses (b) and (c) of this paragraph, have been complied
with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities and EEA Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively,
and solely for purposes of this Section 8.05, the "Trustee") pursuant to Section
8.04 hereof in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities or EEA
Government Obligations held by it as provided in Section 8.04 hereof which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the NEW YORK TIMES and THE
WALL STREET JOURNAL (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
non-callable Government Securities or EEA Government Obligations in accordance
with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; PROVIDED, HOWEVER, that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
SECTION 8.08 SURVIVAL.
The Trustee's rights under this Article 8 shall survive
termination of this Indenture.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 hereof, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(g) to provide for the issuance of the Unrestricted Notes under the
Exchange Offer contemplated by the Registration Rights Agreement; or
(h) to effect any change to the transfer and exchange restrictions and
security delivery procedures contained in Article 2 in order to conform with
changes in any applicable law or Applicable Procedures.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and
the Trustee, may amend or supplement this Indenture (including Section 3.09 and
4.10 hereof) and the Notes with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture or the Notes may be waived with the consent of the Holders of
a majority in aggregate principal amount of the then outstanding Notes voting as
a single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).
Notwithstanding the foregoing, without the consent of
Holders of at least 66 2/3% in principal amount of the then outstanding Notes
voting as a single class, the Company and the Trustee may not: (i) modify the
provisions (including the defined terms used therein) of Section 4.14 hereof
in a manner adverse to the Holders or (ii) release or modify a Lien granted
to the Holders of the Notes.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to the provisions of this Section 9.02
and Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) change the Stated Maturity on any Note, or reduce the principal
thereof or the rate (or extend the time for payment) of interest thereon or any
premium payable upon the redemption at the option of the Company thereof, or
change the place of payment where, or the coin or currency in which, any Note or
any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption at the option of the Company, on or after the redemption date), or
reduce the Change of Control Payment or the Asset Sale Offer Price after the
corresponding Asset Sale or Change of Control has occurred;
(b) alter the provisions (including the defined terms used herein)
regarding the right of the Company to redeem the Notes as a right, or at the
option, of the Company in a manner adverse to the Holders;
(c) reduce the percentage in principal amount of Notes outstanding
whose Holders must consent to an amendment, supplement or waiver provided for in
this Indenture;
(d) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby;
(e) cause the Notes to become subordinate in right of payment to any
other Indebtedness; or
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting ▇▇▇▇▇▇'s Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder. An amendment or waiver shall
become effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.01 or 9.02 as applicable.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Notes entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who held Notes at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee
and all other conditions to the execution and delivery of such amendment or
supplement set forth in this Article 9 are fulfilled. The Company may not sign
an amendment or supplemental indenture until the Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment is the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall be discharged and will cease to be of
further effect as to all Notes issued hereunder, when either
(a) all such Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company) have been delivered to the Trustee for cancellation; or
(b) (i) all such Notes not theretofore delivered to such
Trustee for cancellation have become due and payable
by reason of the making of a notice of redemption,
repurchase or otherwise or will become due and
payable within one year and the Company, has
irrevocably deposited or caused to be deposited with
such Trustee as trust funds in trust an amount of
money sufficient to pay and discharge the entire
Indebted ness on such Notes not theretofore delivered
to the Trustee for cancellation for principal,
premium and accrued interest to the date of maturity,
redemption or repurchase;
(ii) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be
continuing on the date of such deposit or shall occur
as a result of such deposit and such deposit mill not
result in a breach or violation of or constitute a
default under, any other instrument to which the
Company is a party or by which the Company is bound;
(iii) the Company has paid or caused to be paid all sums
payable by it under this Indenture; and
(iv) the Company has delivered irrevocable written
instructions to the Trustee under this Indenture to
apply the deposited money toward the payment of such
Notes at maturity or the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
SECTION 10.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
4.17 hereof, all money deposited with the Trustee pursuant to Section 10.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to Persons entitled thereto, of the principal (and
premium, if any), and interest, for whose payment such money has been deposited
with the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though such deposit had occurred pursuant to Section 10.01 hereof, PROVIDED
that if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the Trustee
or Paying Agent.
ARTICLE 11.
[INTENTIONALLY OMITTED]
ARTICLE 12.
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 12.02 NOTICES.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Metromedia Fiber Network Services, Inc.
c/o Metromedia Fiber Network, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Metromedia Company
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Attention: General Counsel
and a copy to:
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
If to the Trustee:
The Bank of New York
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Attn: Corporate Trust Administration
Re: Metromedia Fiber Network, Inc.
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged by the sender's
telecopier, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except that any notice or communication to the Trustee shall be
deemed to have been duly given to the Trustee when received at the Corporate
Trust Office of the Trustee.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, except with respect to the initial
authentication of Notes on the date of this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has or
they have made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable
requirements for its functions.
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHARE HOLDERS.
No past, present or future director, officer, employee,
incorporator, agent or shareholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, this Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 12.08 GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 12.09 CONSENT TO JURISDICTION AND SERVICE.
To the fullest extent permitted by applicable law, the Company
hereby irrevocably submits to the jurisdiction of any Federal or State court
located in the Borough of Manhattan in The City of New York, New York in any
suit, action or proceeding based on or arising out of or relating to this
Agreement or any Notes or Exchange Notes, and irrevocably agree that all claims
in respect of such suit or proceeding may be determined in any such court. The
Company irrevocably waives, to the fullest extent permitted by law, any
objection which they may have to the laying of the venue of any such suit,
action or proceeding brought in such a court and any claim that any suit, action
or proceeding brought in such a court has been brought in an inconvenient forum.
The Company agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Company and may
be enforced in the courts of any jurisdiction to which the Company is subject by
a suit upon such judgment, PROVIDED that service of process is effected upon the
Company in the manner specified herein or as otherwise permitted by law. To the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
now, attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of their respective obligations
under this Agreement, to the extent permitted by law.
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.11 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.12 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 12.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 12.15 JUDGMENT CURRENCY.
The Company hereby agrees to indemnify the Trustee, its directors, its
officers and each person, if any, who controls the Trustee within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
loss incurred by such person as a result of any judgment or order being given or
made against the Company for any U.S. Dollar amount due under this Agreement and
such judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States Dollars and as a result of any variation as
between (i) the rate of exchange at which the United States Dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in The City of New York at which such party
on the date of payment of such judgment or order is able to purchase United
States Dollars with the amount of the Judgment Currency actually received by
such party. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States Dollars.
[INDENTURE SIGNATURE PAGE(S)]
Dated as of November __, 1999
METROMEDIA FIBER NETWORK,
INC.
By:
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By:
Name:
Title:
EXHIBIT A-1
(FACE OF DOLLAR NOTE)
[REMOVE THE GLOBAL NOTE LEGEND BELOW, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE INDENTURE] THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
CUSIP
$[ ]% SENIOR NOTES DUE 2009
No.$
METROMEDIA FIBER NETWORK, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of [ ]
Dollars on December 15, 2009.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officer.
Dated: [ ], 1999
METROMEDIA FIBER NETWORK, INC.
By:
Name:
Title:
By:
Name:
Title:
This is one of the Notes
referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK
as Trustee
By: Dated:
Name:
Title:
(BACK OF DOLLAR NOTE)
$[ ]% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Metromedia Fiber Network, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Dollar Note at [ ]% per annum from the date of issuance and authentication
of this Dollar Note (November , 1999) until maturity payable in accordance with
the provisions of the following paragraph. The Company shall pay interest
semi-annually on June 15 and December 15 of each year, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Dollar Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED that if there is no existing Default or Event of Default
relating to the payment of interest, and if this Dollar Note is authenticated
between a Record Date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be
June 15, 2000. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1.0% per annum in excess of
the rate then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Dollar Notes (except defaulted interest) to the Persons who are registered
Holders of Dollar Notes at the close of business on the June 1 or December 1
next preceding the Interest Payment Date, even if such Dollar Notes are canceled
after such Record Date and on or before such Interest Payment Date, except as
provided in Section 2.13 of the Indenture with respect to defaulted interest.
The Dollar Notes shall be payable as to principal, premium, if any, and interest
at the office or agency of the Company maintained for such purpose within or
outside of the City and State of New York, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders kept by the Registrar, and
PROVIDED that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest and premium on, all Dollar
Global Notes and all other Dollar Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York, the Trustee under the Indenture, shall act as Paying Agent and Registrar
and [ ] will act as Paying Agent in Luxembourg. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its Restricted Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Dollar Notes under an
Indenture dated as of [ 1999] ("INDENTURE") between the Company and
the Trustee. The terms of the Dollar Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Dollar Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To the extent any
provision of this Dollar Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Dollar Notes are obligations of the Company limited to $[ ] million in aggregate
principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) below,
the Dollar Notes shall not be redeemable at the Company's option prior to
December 15, 2004. Thereafter, the Dollar Notes shall be subject to redemption
at any time at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date), if redeemed during the twelve-month period
beginning on December 15 of the years indicated below:
PERCENTAGE OF
PRINCIPAL
YEAR AMOUNT
2004 %
2005 %
2006 %
2007 and thereafter %
(b) Notwithstanding the foregoing, at any time prior to
December 15, 2002, the Company may, on any one or more occasions, redeem up to
35% of the aggregate principal amount of each of the Dollar Notes and the Euro
Notes (determined separately) originally issued pursuant to the Indenture at a
redemption price of [ ]% of the principal amount of the Dollar Notes, plus
accrued and unpaid interest thereon to the redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date), with the Net Cash Proceeds received from any
Public Equity Offering made by the Company resulting in gross proceeds to the
Company of at least $100 million; PROVIDED that at least 65% of the aggregate
principal amount of the Dollar Notes and the Euro Notes (determined separately)
originally issued pursuant to the Indenture remain outstanding immediately after
the occurrence of any such redemption. The Company may make any such redemption
upon not less than 30 nor more than 60 days' notice (but in no event more than
90 days after the closing of the related Public Equity Offering).
(c) Any redemption pursuant to this Section 5 shall be made
pursuant to the provisions of Section 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Dollar Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Dollar Notes will have the right to require the Company to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's Dollar
Notes pursuant to the offer described below (the "Change of Control
Offer") at a purchase price in cash equal to 101% of the aggregate principal
amount thereof (the "Change of Control Payment") plus accrued and unpaid
interest thereon to the date of purchase (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder setting forth the procedures governing
the Change of Control Offer as required by the Indenture.
(b) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale,
unless (i) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (as determined in good faith by the Board of Directors (including
as to the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Telecommunications
Assets, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the permanent redemption or repurchase of outstanding Indebtedness (other than
Subordinated Indebtedness) that is secured Indebtedness (including that in the
case of a revolver or similar arrangement that makes credit available, such
commitment is so permanently reduced by such amount) or Indebtedness of the
Company or such Restricted Subsidiary that ranks equally with the Notes but has
a maturity date that is prior to the maturity date of the Notes and/or (b) to
reinvest such Net Cash Proceeds (or any portion thereof) in Telecommunications
Assets. Notwithstanding anything herein to the contrary, with respect to the
reinvestment of Net Cash Proceeds, only proceeds from an Asset Sale of assets,
or Equity Interests, of a Foreign Subsidiary may be used to retire Indebtedness
of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign
Subsidiary. The balance of such Net Cash Proceeds, after the application of such
Net Cash Proceeds as described in the immediately preceding clauses (a) and (b),
shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or
exceeds $15.0 million (taking into account income earned on such Excess
Proceeds), the Company will be required to make a pro rata offer to all Holders
of Notes and PARI PASSU Indebtedness with comparable provisions requiring such
Indebtedness to be purchased with the proceeds of such Asset Sale (an "Asset
Sale Offer") to purchase the maximum principal amount or accreted value in the
case of Indebtedness issued with an original issue discount of Notes and PARI
PASSU Indebtedness that may be purchased out of the Excess Proceeds, at a
purchase price in cash in an amount equal to 100% of the principal amount
thereof or the accreted value thereof, as applicable, plus accrued and unpaid
interest thereon to the date of purchase (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), in accordance with the procedures set forth in Article 3
of the Indenture and the agreements governing such PARI PASSU Indebtedness. To
the extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and PARI
PASSU Indebtedness tendered into such Asset Sale Offer surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and PARI PASSU Indebtedness to be purchased on a pro rata basis in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness. Upon completion, of such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero for purposes of the first sentence of
this paragraph.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Dollar Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Dollar Notes held by a Holder are to be
redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Dollar Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a Record Date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note on
the Registrar's books may be treated as its owner for all purposes under the
Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Note may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes voting as a single class. Without the consent of any
Holder of a Note, the Indenture or the Notes may be amended or supplemented,
among other things, to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Company's assets in accordance with the terms of the Indenture, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA, to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred by the Indenture upon the Company, or to
effect any change to the transfer and exchange restrictions and security
delivery procedures contained in the Indenture in order to conform with changes
in any applicable law or Applicable Procedures.
12. DEFAULTS AND REMEDIES.
(a) Events of Default under the Indenture include: (i) the
failure to pay interest the Notes, when the same becomes due and payable if such
default continues for a period of 30 days, (ii) the failure to pay principal of
any Notes when such principal becomes due and payable, at maturity, upon
redemption or otherwise; (iii) failure by the Company or any Restricted
Subsidiary to comply with Sections 4.10 or 4.14 of the Indenture; (iv) failure
by the Company or any Restricted Subsidiary for 60 days after notice to comply
with any of its other agreements in the Indenture or this Note; (v) default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which is
Guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, which
default results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness or the
maturity of which has been so accelerated, aggregates $15.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments not subject to appeal aggregating in excess of $15.0 million (net of
applicable insurance coverage which is acknowledged in writing by the insurer),
which judgments are not paid, vacated, discharged or stayed for a period of 60
days; and (vii) certain events of bankruptcy or insolvency with respect to the
Company or any of the Company's Restricted Subsidiaries.
(b) If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. Except as provided in the Indenture, the Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture, except a continuing Default or
Event of Default in the payment of interest on, or principal of, the Notes. The
Company shall deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company, upon becoming aware of any Default or Event
of Default, deliver to the Trustee a statement specifying such Default or Event
of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP, ISIN OR COMMON CODE NUMBERS. The Company has caused
CUSIP, ISIN or Common Code numbers, as applicable, to be printed on the Notes
and the Trustee may use CUSIP, ISIN or Common Code numbers, as applicable, in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
18. GOVERNING LAW. This Dollar Note and the Indenture shall be
governed by, and construed in accordance with, the laws of The State of New
York, including, without limitation, Section 5- 1401of the New York General
Obligations Law.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Metromedia Fiber Network Services, Inc.
c/o Metromedia Fiber Network, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
White Plains, NY 10601
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4. 10 / / Section 4.14
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4. 10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $
Date: Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1/
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Note Custodian
---------------------- --------------------- --------------------- ---------------------- ----------------------
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1 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
EXHIBIT A-2
(FACE OF NOTE)
[REMOVE THE GLOBAL NOTE LEGEND BELOW, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
[ISIN][Common Code]_______
*[ ]% SENIOR NOTES DUE 2009
No. *
METROMEDIA FIBER NETWORK, INC.
promises to pay to The Bank of New York, London branch, or registered assigns,
the principal sum of [ ] Euros on December 15, 2009.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by its duly authorized officer.
Dated: [ ], 1999
METROMEDIA FIBER NETWORK, INC.
By:
Name:
Title:
By:
Name:
Title:
This is one of the
Notes referred to in
the within-mentioned
Indenture:
THE BANK OF NEW YORK
as Trustee
By: Dated:
Name:
Title:
(BACK OF EURO NOTE)
(*)[ ]% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Metromedia Fiber Network, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Euro Note at [ ]% per annum from from the date of issuance and
authentication of this Euro Note (November , 1999) until maturity payable in
accordance with the provisions of the following paragraph. The Company shall pay
interest semi-annually on June 15 and December 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"). Interest on the Euro Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; PROVIDED that if there is no existing Default or
Event of Default relating to the payment of interest, and if this Euro Note is
authenticated between a Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED, FURTHER, that the first Interest
Payment Date shall be June 15, 2000. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is
1.0% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Euro Notes (except defaulted interest) to the Persons who are registered Holders
of Euro Notes at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Euro Notes are canceled after
such Record Date and on or before such Interest Payment Date, except as provided
in Section 2.13 of the Indenture with respect to defaulted interest. The Euro
Notes shall be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose within or outside of
the City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders kept by the Registrar, and PROVIDED that payment by
wire transfer of immediately available funds shall be required with respect to
principal of and interest and premium on, all Euro Global Notes and all other
Euro Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York, the Trustee under the Indenture, shall act as Paying Agent and Registrar
and [ ] will act as Paying Agent in Luxembourg. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its Restricted Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Euro Notes under an
Indenture dated as of [ 1999] ("INDENTURE") between the Company and
the Trustee. The terms of the Euro Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Euro Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. To the
extent any provision of this Euro Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Euro Notes are obligations of the Company limited to
[Euro][ ] million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) below,
the Euro Notes shall not be redeemable at the Company's option prior to December
15, 2004. Thereafter, the Euro Notes shall be subject to redemption at any time
at the option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon to
the applicable redemption date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date), if redeemed during the twelve-month period beginning on December 15 of
the years indicated below:
PERCENTAGE OF
PRINCIPAL
YEAR AMOUNT
2004 %
2005 %
2006 %
2007 and thereafter %
(b) Notwithstanding the foregoing, at any time prior to
December 15, 2002, the Company may, on any one or more occasions, redeem up to
35% of the aggregate principal amount of the Dollar Notes and the Euro Notes
(determined separately) originally issued pursuant to the Indenture at a
redemption price of [ ]% of the principal amount thereof, plus accrued and
unpaid interest thereon to the redemption date (subject to the right of Holders
of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), with the Net Cash Proceeds received from any Public
Equity Offering made by the Company resulting in gross proceeds to the Company
of at least $100 million; PROVIDED that at least 65% of the aggregate principal
amount of the Dollar Notes and the Euro Notes (determined separately) originally
issued pursuant to the Indenture remain outstanding immediately after the
occurrence of any such redemption. The Company may make any such redemption upon
not less than 30 nor more than 60 days' notice (but in no event more than 90
days after the closing of the related Public Equity Offering).
(c) Any redemption pursuant to this Section 5 shall be made
pursuant to the provisions of Section 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Euro Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Euro Notes will have the right to require the Company to purchase all or any
part (equal to [Euro]1,000 or an integral multiple
thereof) of such ▇▇▇▇▇▇'s Euro Notes pursuant to the offer described below (the
"Change of Control Offer") at a purchase price in cash equal to 101% of the
aggregate principal amount thereof (the "Change of Control Payment") plus
accrued and unpaid interest thereon to the date of purchase (subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date). Within 30 days following any Change of
Control, the Company will mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale,
unless (i) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (as determined in good faith by the Board of Directors (including
as to the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Telecommunications
Assets, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the permanent redemption or repurchase of outstanding Indebtedness (other than
Subordinated Indebtedness) that is secured Indebtedness (including that in the
case of a revolver or similar arrangement that makes credit available, such
commitment is so permanently reduced by such amount) or Indebtedness of the
Company or such Restricted Subsidiary that ranks equally with the Notes but has
a maturity date that is prior to the maturity date of the Notes and/or (b) to
reinvest such Net Cash Proceeds (or any portion thereof) in Telecommunications
Assets. Notwithstanding anything herein to the contrary, with respect to the
reinvestment of Net Cash Proceeds, only proceeds from an Asset Sale of assets,
or Equity Interests, of a Foreign Subsidiary may be used to retire Indebtedness
of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign
Subsidiary. The balance of such Net Cash Proceeds, after the application of such
Net Cash Proceeds as described in the immediately preceding clauses (a) and (b),
shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or
exceeds $15.0 million (taking into account income earned on such Excess
Proceeds), the Company will be required to make a pro rata offer to all Holders
of Notes and PARI PASSU Indebtedness with comparable provisions requiring such
Indebtedness to be purchased with the proceeds of such Asset Sale (an "Asset
Sale Offer") to purchase the maximum principal amount or accreted value in the
case of Indebtedness issued with an original issue discount of Notes and PARI
PASSU Indebtedness that may be purchased out of the Excess Proceeds, at a
purchase price in cash in an amount equal to 100% of the principal amount
thereof or the accreted value thereof, as applicable, plus accrued and unpaid
interest thereon to the date of purchase (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), in accordance with the procedures set forth in Article 3
of the Indenture and the agreements governing such PARI PASSU Indebtedness. To
the extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and PARI
PASSU Indebtedness tendered into such Asset Sale Offer surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and PARI PASSU Indebtedness to be purchased on a pro rata basis in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness. Upon completion, of such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero for purposes of the first sentence of
this paragraph.
8. NOTICE OF REDEMPTION. Notice of redemption shall be
mailed at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered address. Euro
Notes in denominations larger than [Euro]1,000 may be redeemed in part but
only in whole multiples of [Euro]1,000, unless all of the Euro Notes held by
a Holder are to be redeemed. On and
after the redemption date interest shall cease to accrue on Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Euro Notes are in
registered form without coupons in denominations of [Euro]1,000 and integral
multiples of [Euro]1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected
for redemption, except for the unredeemed portion of any Note being redeemed
in part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a Record Date and the corresponding Interest
Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Euro
Note on the Registrar's books may be treated as its owner for all purposes under
the Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Note may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes voting as a single class. Without the consent of any
Holder of a Note, the Indenture or the Notes may be amended or supplemented,
among other things, to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Company's assets in accordance with the terms of the Indenture, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA, to
add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power conferred by the Indenture upon the Company, or to
effect any change to the transfer and exchange restrictions and security
delivery procedures contained in the Indenture in order to conform with changes
in any applicable law or Applicable Procedures.
12. DEFAULTS AND REMEDIES.
(a) Events of Default under the Indenture include: (i) the
failure to pay interest on the Notes, when the same becomes due and payable if
such default continues for a period of 30 days, (ii) the failure to pay
principal of any Notes when such principal becomes due and payable, at maturity,
upon redemption or otherwise; (iii) failure by the Company or any Restricted
Subsidiary to comply with Sections 4.10 or 4.14 of the Indenture; (iv) failure
by the Company or any Restricted Subsidiary for 60 days after notice to comply
with any of its other agreements in the Indenture or this Note; (v) default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which is
Guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, which
default results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness or the
maturity of which has been so accelerated, aggregates $15.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments not subject to appeal aggregating in excess of $15.0 million (net of
applicable insurance coverage which is acknowledged in writing by the insurer),
which judgments are not paid, vacated, discharged or stayed for a period of 60
days; and (vii) certain events of bankruptcy or insolvency with respect to the
Company or any of the Company's Restricted Subsidiaries.
(b) If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. Except as provided in the Indenture, the Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture, except a continuing Default or
Event of Default in the payment of interest on, or principal of, the Notes. The
Company shall deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company, upon becoming aware of any Default or Event
of Default, deliver to the Trustee a statement specifying such Default or Event
of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP, ISIN OR COMMON CODE NUMBERS. The Company has caused
CUSIP, ISIN or Common Code numbers, as applicable, to be printed on the Notes
and the Trustee may use CUSIP, ISIN or Common Code numbers, as applicable, in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
18. GOVERNING LAW. This Euro Note and the Indenture shall be
governed by, and construed in accordance with, the laws of The State of New
York, including, without limitation, Section
5- 1401of the New York General Obligations Law.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Metromedia Fiber Network Services, Inc.
c/o Metromedia Fiber Network, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4. 10 / / Section 4.14
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4. 10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: (*)
Date: Your Signature:
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer
Agent Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE2/
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease of Trustee or
Date of Exchange Global Note Global Note (or increase) Note Custodian
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2 THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.