▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
as Issuer
-----------------------------
[NAME OF NEW GLOBAL CROSSING HOLDING COMPANY]
and
THE OTHER GUARANTORS REFERRED TO HEREIN,
as Guarantors
------------------------------
11% SENIOR SECURED NOTES DUE 2006
------------------------------
INDENTURE
Dated as of __________, 2003
------------------------------
▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION
as Trustee
------------------------------
$200,000,000
------------------------------
================================================================================
Table of Contents
This Table of Contents does not for any purpose constitute a
part of this Indenture, and is inserted for convenience of reference only.
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE .....................2
SECTION 1.01. Definitions ...............................................2
SECTION 1.02. Other Definitions ........................................29
SECTION 1.03. Trust Indenture Act Definitions ..........................29
SECTION 1.04. Rules of Construction ....................................30
ARTICLE II THE NOTES .....................................................30
SECTION 2.01. Form and Dating ..........................................30
SECTION 2.02. Execution, Authentication and Denominations ..............31
SECTION 2.03. Registrar and Paying Agent ...............................32
SECTION 2.04. Paying Agent to Hold Money in Trust ......................32
SECTION 2.05. Transfer and Exchange ....................................33
SECTION 2.06. Replacement Notes ........................................36
SECTION 2.07. Outstanding Notes ........................................36
SECTION 2.08. Temporary Notes ..........................................37
SECTION 2.09. Cancellation .............................................38
SECTION 2.10. CUSIP Numbers ............................................38
SECTION 2.11. Defaulted Interest .......................................38
SECTION 2.12. Noteholder Lists ........................................ 39
SECTION 2.13. Communication By Holders with Other Holders ..............39
ARTICLE III REDEMPTION AND PREPAYMENT ................................39
SECTION 3.01. Notices to Trustee .......................................39
SECTION 3.02. Selection of Notes to Be Redeemed ........................39
SECTION 3.03. Notice of Redemption .....................................39
SECTION 3.04. Effect of Notice of Redemption ...........................40
SECTION 3.05. Deposit of Redemption Price ..............................40
SECTION 3.06. Notes Redeemed in Part ...................................41
SECTION 3.07. Optional Redemption ......................................41
SECTION 3.08. Mandatory Redemption .....................................41
SECTION 3.09. Offer to Purchase by Application of Excess Proceeds ......42
ARTICLE IV COVENANTS .....................................................44
SECTION 4.01. Payment of Notes .........................................44
SECTION 4.02. Maintenance of Office or Agency ..........................44
SECTION 4.03. Reports ..................................................45
SECTION 4.04. Compliance Certificate, Etc ..............................45
SECTION 4.05. Taxes ....................................................47
SECTION 4.06. Stay, Extension and Usury Laws ...........................47
SECTION 4.07. Restricted Payments ......................................47
i
SECTION 4.08. Certain Dividend and Other Payment Restrictions ..........50
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock ....................................................52
SECTION 4.10. Asset Sales and Specified Subsidiary Asset Sales and
Casualty Events ..........................................55
SECTION 4.11. Transactions with Affiliates .............................57
SECTION 4.12. Liens ....................................................59
SECTION 4.13. Sale and Leaseback Transactions ..........................59
SECTION 4.14. Corporate Existence ......................................60
SECTION 4.15. Offer to Repurchase Upon Change of Control ...............60
SECTION 4.16. Business Activities; Holding Company Status ..............61
SECTION 4.17. Issuances and Sales of Certain Equity Interests ..........62
SECTION 4.18. Designation and Revocation of Designation of Unrestricted
Subsidiaries .............................................62
SECTION 4.19. Guarantee Supplements ....................................63
SECTION 4.20. Further Instruments and Acts .............................64
SECTION 4.21. Payments for Consent .....................................64
ARTICLE V CONSOLIDATION, MERGER AND SALE OF PROPERTY ....................64
SECTION 5.01. Merger, Consolidation, or Sale of Property ...............64
SECTION 5.02. Successor Entity Substituted .............................65
ARTICLE VI SECURITY DOCUMENTS ............................................65
SECTION 6.01. Collateral and Security Documents ........................65
SECTION 6.02. Exclusion of Certain Liens ...............................66
SECTION 6.03. Maintenance of Liens .....................................69
SECTION 6.04. Subordination to Working Capital Facility ................71
SECTION 6.05. Release of Liens .........................................72
ARTICLE VII DEFAULT AND REMEDIES ..........................................73
SECTION 7.01. Events of Default ........................................73
SECTION 7.02. Acceleration .............................................75
SECTION 7.03. Other Remedies ...........................................76
SECTION 7.04. Waiver of Past Defaults ..................................76
SECTION 7.05. Control by Majority ......................................76
SECTION 7.06. Limitation on Suits ......................................76
SECTION 7.07. Rights of Holders of Notes to Receive Payment ............77
SECTION 7.08. Collection Suit by Trustee ...............................77
SECTION 7.09. Trustee May File Proofs of Claim .........................78
SECTION 7.10. Priorities ...............................................78
SECTION 7.11. Undertaking for Costs ....................................79
SECTION 7.12. Rights and Remedies Cumulative ...........................79
SECTION 7.13. Delay or Omission Not Waiver .............................79
SECTION 7.14. Restoration of Rights and Remedies .......................79
ARTICLE VIII TRUSTEE .......................................................80
SECTION 8.01. General ..................................................80
SECTION 8.02. Certain Rights of Trustee; Reliance on Certificate .......80
ii
SECTION 8.03. May Hold Notes ...........................................82
SECTION 8.04. Trustee's Disclaimer .....................................82
SECTION 8.05. Notice of Default ........................................83
SECTION 8.06. Reports by Trustee to Holders ............................83
SECTION 8.07. Compensation and Indemnity ...............................83
SECTION 8.08. Replacement of Trustee ...................................84
SECTION 8.09. Successor Trustee by Merger, Etc .........................85
SECTION 8.10. Eligibility; Disqualification ............................85
SECTION 8.11. Money Held in Trust ......................................85
SECTION 8.12. Withholding Taxes ........................................85
SECTION 8.13. Preferential Collection of Claims Against the Issuer .....86
ARTICLE IX APPLICATION OF TRUST MONEYS ...................................86
SECTION 9.01. "Trust Moneys" Defined ...................................86
SECTION 9.02. Retirement of Notes ......................................87
SECTION 9.03. Withdrawals of Insurance Proceeds and Condemnation Awards.87
SECTION 9.04. Withdrawals of Sale Proceeds .............................89
SECTION 9.05. Powers Exercisable Notwithstanding Event of Default ......90
SECTION 9.06. Powers Exercisable by Trustee or Receiver ................91
SECTION 9.07. Disposition of Notes Retired .............................91
SECTION 9.08. Investment and Use of Trust Moneys .......................91
ARTICLE X AMENDMENTS, SUPPLEMENTS AND WAIVERS ...........................92
SECTION 10.01. Without Consent of Holders ...............................92
SECTION 10.02. Consent of Holders .......................................93
SECTION 10.03. Revocation and Effect of Consent .........................94
SECTION 10.04. Notation on or Exchange of Notes .........................95
SECTION 10.05. Trustee to Sign Amendments, Etc ..........................95
SECTION 10.06. Conformity with Trust Indenture Act ......................95
SECTION 10.07. Amendments to Security Documents .........................95
ARTICLE XI NOTE GUARANTEE ................................................95
SECTION 11.01. Note Guarantee ...........................................95
SECTION 11.02. Limitation on Guarantor Liability ........................97
SECTION 11.03. Rights of Contribution ...................................97
ARTICLE XII MISCELLANEOUS .................................................98
SECTION 12.01. Trust Indenture Act of 1939 ..............................98
SECTION 12.02. Notices ..................................................98
SECTION 12.03. Certificate and Opinion as to Conditions Precedent ......100
SECTION 12.04. Statements Required in Certificate or Opinion ...........100
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar .............100
SECTION 12.06. Payment Date Other Than a Business Day ..................100
SECTION 12.07. Governing Law ...........................................101
SECTION 12.08. No Adverse Interpretation of Other Agreements ...........101
SECTION 12.09. No Recourse Against Others ..............................101
SECTION 12.10. Successors ..............................................101
iii
SECTION 12.11. Duplicate Originals .....................................102
SECTION 12.12. Severability ............................................102
SECTION 12.13. Qualification of Indenture ..............................102
SECTION 12.14. Table of Contents, Headings, Etc ........................102
SECTION 12.15. Consent to Jurisdiction .................................102
SECTION 12.16. Waiver of Jury Trial ....................................103
SECTION 12.17. Judgment Currency .......................................103
EXHIBIT A Form of Note
EXHIBIT B Form of Guarantee Supplement
EXHIBIT C Form of Intercreditor Agreement
EXHIBIT D Form of Security Agreement
EXHIBIT E-1 Form of Affiliate Subordination Provisions
EXHIBIT E-2 Form of Non-Affiliate Subordination Provisions
EXHIBIT F Issue Date Deliverables
EXHIBIT G Form of Officers' Certificate pursuant to Section 6.05(c)
iv
Cross-reference sheet showing the location in this Indenture of the
provisions inserted pursuant to Sections 310 through 318 inclusive of the Trust
Indenture Act of 1939.
TIA Indenture Section
--- -----------------
Section 310 (a)(1) ....................................... 8.10
(a)(2) ....................................... 8.10
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(a)(5) ....................................... Not Applicable
(b) ....................................... 8.10
(c) ....................................... Not Applicable
Section 311 (a) ....................................... 8.13
(b) ....................................... 8.13
(c) ....................................... Not Applicable
Section 312 (a) ....................................... 2.12
(b) ....................................... 2.13
(c) ....................................... 2.13
Section 313 (a) ....................................... 8.06
(b) ....................................... 8.06
(c) ....................................... 8.05, 8.06
(d) ....................................... 8.06
Section 314 (a) ....................................... 4.03, 4.04
(b) ....................................... 6.03
(c) ....................................... 12.03
(d) ....................................... 6.05(c)
(e) ....................................... 12.04
(f) ....................................... Not Applicable
Section 315 (a)(1) ....................................... 8.07(b)
(a)(2) ....................................... 8.02(a)(i), 8.07(b)
(b) ....................................... 8.05, 8.07(b)
(c) ....................................... 8.01, 8.07(b)
(d) ....................................... 8.07(b)
(e) ....................................... 7.10
Section 316 (a) ....................................... 2.07(b), 7.05
(b) ....................................... 7.07
(c) ....................................... Not Applicable
Section 317 (a)(1) ....................................... 7.08
(a)(2) ....................................... 7.09
(b) ....................................... 2.04
Section 318 (a) ....................................... 12.01
(c) ....................................... 12.01
v
INDENTURE, dated as of ___________, 2003, by and between GLOBAL
CROSSING NORTH AMERICA, a corporation duly organized and validly existing under
the laws of the State of New York (the "Issuer"), [NAME OF NEW GLOBAL CROSSING
HOLDING COMPANY], a company duly organized and validly existing under the laws
of Bermuda (the "Company"), and the other entities identified on the signature
pages hereto under the caption "GUARANTORS" (the Company together with such
other entities, and any entity that shall become a Guarantor hereunder pursuant
to Section 4.19 hereof, being herein called the "Guarantors" and, together with
the Issuer, the "Credit Parties") and ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
trustee (the "Trustee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, on January 28, 2002, Global Crossing Holdings Ltd., a company
organized under the laws of Bermuda ("GX Holdings"), the Issuer, and certain of
their subsidiaries and affiliates (collectively, the "U.S. Debtors") filed a
voluntary petition in the United States Bankruptcy Court for the Southern
District of New York (the "Bankruptcy Court") initiating cases under chapter 11
of title 11 of the United States Code ▇▇.▇▇. 101-1330 (as amended, the
"Bankruptcy Code") and continued in the possession of their assets and in the
management of their businesses pursuant to sections 1107 and 1108 of the
Bankruptcy Code;
WHEREAS, on January 28, 2002, GX Holdings and certain of the
subsidiaries and affiliates of GX Holdings organized under the laws of Bermuda
(collectively, the "Bermuda Debtors" and, together with the U.S. Debtors, the
"Debtors") petitioned the Supreme Court of Bermuda (the "Bermuda Court") for the
appointment of Joint Provisional Liquidators, and by an order dated January 28,
2002 (the "Bermuda Orders"), the Joint Provisional Liquidators were appointed by
the Bermuda Court in respect of each Bermuda Debtor;
WHEREAS, the U.S. Debtors have proposed a plan of reorganization with
the Bankruptcy Court (the "Plan") which has been confirmed by an order of the
Bankruptcy Court dated _______, and the Bermuda Debtors have proposed certain
schemes of arrangement (the "Schemes of Arrangement") with the Bermuda Court
which have been sanctioned by an order of the Bermuda Court dated __________;
WHEREAS, pursuant to the Plan and the Schemes of Arrangement, the
Issuer, is to enter into this Indenture and issue $200,000,000 aggregate
principal amount of its 11% Senior Secured Notes due 2006 (the "Notes") to
certain holders of claims against the Debtors;
WHEREAS, the holders of claims against the Debtors that will receive
the Notes consist of (a) the lenders under the Amended and Restated Credit
Agreement,
Indenture
-2-
dated as of August 10, 2000 (the "Credit Agreement"), among Global Crossing
Ltd., Global Crossing Holdings Ltd., the Issuer, the lenders named therein and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
Administrative Agent, and (b) the holders of claims in Class D, Claims E and
Class F (as defined in the Plan);
WHEREAS, pursuant to the Plan and the Schemes of Arrangement, the
Debtors have formed the Company as a new direct or indirect holding company of
all of the shares of stock and other equity interests issued by the Debtors and
their subsidiaries and affiliates, with the intent that the Company enter into
this Indenture and cause each of the Material Subsidiaries of the Company (as
hereinafter defined) to guarantee the obligations of the Issuer hereunder and
under and in respect of the Notes;
WHEREAS, to secure the prompt payment of the principal of and interest
on, and all other amounts due with respect to, the Notes from time to time
outstanding hereunder and the performance and observance by the Issuer and the
Guarantors of all the agreements, covenants and provisions contained herein
(including the Trustee's rights to indemnification hereunder), in the Notes and
in the Security Documents (as hereinafter defined), and for the uses and
purposes and subject to the terms and provisions hereof, and in consideration of
the premises and of the covenants herein contained and of the acceptance of the
Notes by the holders thereof, each Credit Party hereby confirms that it has, or
has caused to be, granted, conveyed, mortgaged, sold, assigned, transferred,
pledged, deposited and confirmed, and does hereby grant, convey, mortgage, sell,
assign, transfer, pledge, deposit and confirm, unto the Trustee, its successors
and assigns, for the security and benefit of the holders from time to time of
the Notes and the Trustee, a Lien (as hereinafter defined) on all Collateral (as
hereinafter defined), whether now existing or hereafter subjected to the Lien of
this Indenture by any instrument supplemental hereto; and
WHEREAS, as part of the confirmation of the Plan under section 1129 of
the Bankruptcy Code, the Credit Parties each received a discharge, pursuant to
section 1141 of the Bankruptcy Code.
NOW, THEREFORE, IT IS HEREBY COVENANTED AND AGREED, for and in
consideration of the foregoing premises, for the ratable benefit of all holders,
as follows:
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person, (a)
Indebtedness 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
Indebtedness Incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person,
and (b) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
Indenture
-3-
"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, means 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, other
than for purposes of the definition of "Permitted Holders" in this Section 1.01,
Beneficial Ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"AGC" means Asia Global Crossing, Ltd., a company organized under the
laws of Bermuda.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-registrar.
"all or substantially all" shall have the meaning given such phrase in
the Revised Model Business Corporation Act.
"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 and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means (A) the sale, lease, conveyance or other
disposition of any Property (including by way of a sale and leaseback) by the
Company or any of its Restricted Subsidiaries, (B) the issuance of Equity
Interests by any of the Company's Restricted Subsidiaries, (C) the occurrence of
any Casualty Event (other than a Specified Subsidiary Casualty Event) with
respect to any Property of the Company or any of its Restricted Subsidiaries and
(D) any merger or consolidation of any of the Restricted Subsidiaries of the
Company with or into any other Person if, after giving effect thereto, such
Subsidiary or its successor shall no longer be a Restricted Subsidiary of the
Company, in the case of any of the preceding clauses (A), (B), (C) or (D),
whether in a single transaction or a series of related transactions (x) that
have a fair market value in excess of $1,000,000 or (y) for consideration having
a fair market value in excess of $1,000,000. Notwithstanding the foregoing, the
following items will not be deemed to be Asset Sales:
(a) (i) sales of inventory in the ordinary course of business by the
Company or its Restricted Subsidiaries and (ii) any sale, lease, transfer,
conveyance or other disposition of capacity on any cable or fiber system
owned, controlled or operated by the Company or any Restricted Subsidiary
thereof or of telecommunications capacity or transmission rights acquired
by the Company or any Restricted Subsidiary thereof, in each case in the
ordinary course of business; provided, that (x) any sale, lease, conveyance
or other disposition of capacity on any such cable or fiber system, or of
any such telecommunications capacity or
Indenture
-4-
transmission rights, shall not be considered to be in the ordinary course
of business for purposes hereof if, after giving effect to such sale, the
Company and its Restricted Subsidiaries no longer operate and control the
cable or fiber system of which such capacity or rights is a part and (y)
the sale, lease, transfer, conveyance or other disposition of all or
substantially all of the Property of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of
Sections 4.15 and/or the provisions of Section 5.01 hereof and not by the
provisions of Section 4.10 hereof;
(b) a transfer of Property by the Company to any of its Wholly Owned
Restricted Subsidiaries that is a Credit Party or by any of its Restricted
Subsidiaries to the Company or to a Wholly Owned Restricted Subsidiary of
the Company that is a Credit Party;
(c) an issuance of Equity Interests to the Company or a Wholly Owned
Restricted Subsidiary of the Company that is a Credit Party by a Restricted
Subsidiary of the Company;
(d) a Permitted Investment, or a Restricted Payment that is permitted
by Section 4.07 hereof;
(e) the sale or other disposition of cash or Cash Equivalents;
(f) a disposition of obsolete or worn-out equipment or equipment that
is no longer useful in the conduct of a Permitted Business and that is
disposed of in the ordinary course of business;
(g) Specified Subsidiary Asset Sales;
(h) sales of Receivables to a Receivables Entity for the fair market
value thereof, including cash in an amount at least equal to 75% of the
book value thereof as determined in accordance with GAAP, it being
understood that, for the purposes of this clause (h), notes received in
exchange for the transfer of Receivables will be deemed cash if the
Receivables Entity or other payor is required to repay said notes as soon
as practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities
that are not Affiliates of the Company entered into as part of a Qualified
Receivables Transaction; and
(i) transfers of Receivables (or a fractional undivided interest
therein) by a Receivables Entity in a Qualified Receivables Transaction.
"Asset Sale Proceeds Account" means an account established and
maintained by the Trustee under this Indenture into which proceeds of Asset
Sales hereunder are to be deposited from time to time in accordance with the
provisions of this
Indenture
-5-
Indenture or established and maintained under the last paragraph of Article III
of the Intercreditor Agreement.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bank" means (a) a banking institution organized under the laws of the
United States, or any branch or agency of any non-US banking institution
licensed under the laws United States or any State thereof, (b) a member bank of
the Federal Reserve System, and (c) a banking institution or trust company,
whether incorporated or not, doing business under the laws of any State or of
the United States, a substantial portion of the business of which consists of
receiving deposits or exercising fiduciary powers similar to those permitted to
national banks by the Comptroller of the Currency, and which is supervised and
examined by State or Federal banking authorities having supervision over banks.
"Bankruptcy Code" has the meaning provided in the recitals hereto.
"Bankruptcy Court" has the meaning provided in the recitals hereto.
"Bankruptcy Law" means the Bankruptcy Code or any similar federal or
state law or any similar provisions of Bermuda law or any relevant law outside
the United States and Bermuda, for the relief of debtors.
"Beneficial Owner" means a "beneficial owner" as defined in Rules
13d-3 and 13d-5 under the Exchange Act.
"Beneficially Own" means "beneficially own" as defined in Rules 13d-3
and 13d-5 under the Exchange Act, and "Beneficial Ownership" has a meaning
correlative thereto.
"Board of Directors" means, in the case of any Credit Party, the board
of directors or other governing body of such Credit Party.
"Board Resolution" means, in the case of any Credit Party, a copy of a
resolution, certified by an appropriate officer or director of such Credit Party
to have been duly adopted by the Board of Directors of such Credit Party and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in the State of New York and Minnesota are
authorized or required by law to close.
Indenture
-6-
"Camelot" means Camelot Group plc, a company registered under the laws
of England and Wales.
"Camelot Deed" means the Deed of Debenture dated July 1, 2002 between
Global Crossing (UK) Telecommunications Limited and Camelot, as in effect on
such date (without giving effect to any amendments subsequent to such date that
expand the scope of the collateral thereunder or the obligations secured
thereby).
"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 (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) 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 Property of, the issuing
Person.
"Cash Collateral" means any Shared Collateral consisting of cash, Cash
Equivalents (including Qualified Cash Equivalents) or any other security
entitlements (as defined in the Uniform Commercial Code), and any financial
assets (as so defined), and not constituting Possessory Collateral.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the government or any agency or instrumentality of the
United States, Bermuda, Switzerland or any member of the European Union
(provided that the full faith and credit of the United States, Bermuda,
Switzerland or any member of the European Union is pledged in support thereof),
having maturities of not more than 365 days from the date of acquisition, (b)
certificates of deposit and eurodollar time deposits with maturities of 90 days
or less from the date of acquisition, bankers' acceptances with maturities not
exceeding 90 days and overnight bank deposits, in each case with any commercial
bank organized under the law of the United States or any State thereof, Bermuda,
Switzerland or any member of the European Union having capital and surplus in
excess of $500,000,000 (or the equivalent thereof in any other currency), whose
long-term debt is rated A-3 or A- or higher or, with respect to Switzerland or
any country in the European Union, Aa2 or AA or higher according to Moody's or
S&P, and denominated in a freely-convertible currency, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in the preceding clauses (a) and (b) entered into with any
financial institution meeting the qualifications specified in the preceding
clause (b), (d) commercial paper having the highest rating obtainable from
Moody's or S&P and in each case maturing within six months after the date of
acquisition, issued by a corporation organized under the law of the United
States or any State thereof, Bermuda, Switzerland or any member of the European
Union and
Indenture
-7-
denominated in any freely-convertible currency and (e) money market funds at
least 95% of the assets of which constitute Cash Equivalents of the types and
maturities described in the preceding clauses (a) through (c).
"Casualty Event" means, with respect to any Property of any Person,
any loss of or damage to, or any condemnation, seizure or other taking of, such
Property for which such Person or any of its Restricted Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award, settlement or other
compensation.
"Change of Control" means the occurrence of any of the following: (a)
any "person" (for purposes of this definition, as such term is 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, (b) Continuing Directors cease for any reason to
constitute a majority of the Board of Directors of the Company, (c) the Company
consolidates or merges with or into any other Person, other than a consolidation
or merger (i) 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, more than 50% of the Voting Stock (measured by voting power rather
than number of shares) of the surviving corporation immediately following such
transaction, (ii) with a Restricted Subsidiary of either the Company or a
Permitted Holder that is a Credit Party, or (iii) with 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 or (d) 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 Property of
the Company and its Restricted Subsidiaries taken as a whole to any Person.
"Clearstream" means Clearstream Banking, societe anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, (a) all buildings, plants, network
facilities, structures, improvements and equipment of the Credit Parties and all
other Property of the Credit Parties, (b) all the issued and outstanding Equity
Interests held by the Credit Parties in any Subsidiaries of the Credit Parties,
(c) all cash held by the Trustee (or by the respective agent under the Working
Capital Facility) pursuant to this Indenture or the Security Documents (and
under the "Working Capital Facility Security Documents" referred to in the
Intercreditor Agreement), (d) all other Property of the Credit Parties
enumerated under the Security Documents and (e) all proceeds of any of
Indenture
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the foregoing (including any proceeds of a sale of the foregoing); provided that
Property pledged to Camelot pursuant to the Camelot Deed shall not constitute
"Collateral" hereunder.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the TIA, the body performing such duties at such time.
"Company" means the party named as such in this Indenture until a
Successor Entity replaces it pursuant to Article V hereof, and thereafter means
such Successor Entity.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus,
to the extent that any of the following items were deducted or added (without
duplication) in computing such Consolidated Net Income, (a) provision for taxes
based on income or profits of such Person and its Restricted Subsidiaries for
such period, plus (b) Consolidated Interest Expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized, plus (c) depreciation, amortization (including amortization of
goodwill and other intangibles and the amount of capacity available for sale
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 or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period, minus (d) 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 such Person shall be added to Consolidated Net
Income to compute Consolidated Cash Flow of such Person only to the extent that
a corresponding amount would be permitted at the date of determination to be
dividended to such Person 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 (other
than the Working Capital Facility to the extent such restrictions are in
compliance with Section 4.08 hereof).
"Consolidated Interest Expense" means, with respect to any Person for
any period, the consolidated net interest expense included in a consolidated
income statement (after deduction of interest income to the extent not included
in Net Income) of such Person and its consolidated Restricted Subsidiaries for
such period, including
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without duplication (or, to the extent not so included, with the addition of),
(i) amortization of debt issuance costs and original issue discount, (ii)
non-cash interest payments (other than interest payments payable solely in
Equity Interests, other than Disqualified Capital Stock), (iii) the interest
component of any deferred payment obligations, (iv) the interest component of
all payments associated with Capital Lease Obligations, (v) imputed interest
with respect to Attributable Debt, (vi) commissions, discounts and other fees
and charges Incurred in respect of letters of credit or bankers' acceptance
financings, (vii) commissions, discounts, yield and other fees and charges
Incurred in connection with any Qualified Receivables Transaction, (viii) the
accretion of principal of a non-interest bearing or other discount security and
(ix) net payments (if any) pursuant to Hedging Obligations.
In calculating pro forma Consolidated Interest Expense for purposes of
determining pro forma Consolidated Cash Flow as contemplated by the second
paragraph of the definition of "Consolidated Leverage Ratio" in this Section
1.01, interest on Indebtedness determined on a fluctuating basis as of the date
of determination shall be deemed to have accrued at a fixed rate per annum equal
to the rate of interest on such Indebtedness as in effect on the date of
determination, taking into account any net payments to be received or made in
respect of Hedging Obligations.
"Consolidated Leverage Ratio" means, with respect to any Person as of any
date of determination, the ratio of (a) the aggregate consolidated principal
amount of Indebtedness outstanding and the liquidation preference of
Disqualified Stock as of the most recent quarterly or annual balance sheet date,
after giving pro forma effect to the Incurrence of such Indebtedness or the
issuance of such Disqualified Stock and any other Indebtedness Incurred and
Disqualified Stock issued since such balance sheet date to (b) Consolidated Cash
Flow for the Reference Period ending on or prior to the date of Incurrence of
such Indebtedness or issuance of such Disqualified Stock for which consolidated
financial statements are available (it being understood that if the Reference
Period shall consist of fewer than four complete fiscal quarters, then
Consolidated Cash Flow for the Reference Period shall be multiplied by a factor,
the numerator of which is four and the denominator of which is such number of
complete fiscal quarters fewer than four).
For purposes of this definition, the Consolidated Leverage Ratio shall be
calculated on a pro forma basis, after giving effect to (i) the Incurrence of
the Indebtedness of such Person and the issuance of the Disqualified Stock (and
the application of the proceeds therefrom) giving rise to the need to make such
calculation and any Incurrence (and the application of the proceeds therefrom)
or repayment of other Indebtedness or Disqualified Stock, at any time subsequent
to the beginning of the Reference Period and on or prior to the date of
determination, as if such Incurrence or issuance (and the application of the
proceeds thereof), or the repayment, as the case may be, occurred on the first
day of the Reference Period (except that, in making such computation, the amount
of Indebtedness under any revolving credit facility shall be computed based upon
the average balance of such Indebtedness at the end of each month during such
period), and (ii) any acquisition at any time on or subsequent to the first day
Indenture
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of the Reference Period and on or prior to the date of determination, as if such
acquisition or disposition (including the Incurrence, assumption or liability
for, or repayment of, any such Indebtedness and the issuance of such
Disqualified Stock and also including any Consolidated Cash Flow associated with
such acquisition) occurred on the first day of the Reference Period, without
giving effect to any anticipated cost or expense reductions or savings which are
not calculated in compliance with Regulation S-X of the Exchange Act.
"Consolidated Net Income" means, with respect to any specified Person for
any period, the sum, without duplication, of (i) the aggregate of the Net Income
of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP plus (ii) to the extent
that any of the following items were deducted in computing such Consolidated Net
Income, (A) non-recurring non-cash charges (other than charges arising from
write-downs of assets) and (ii) non-cash compensation charges arising from stock
options or other similar employee benefit compensation plans, provided that,
without duplication, (a) the Net Income (but not loss) of any Unrestricted
Subsidiary or any other Person that is not a Restricted Subsidiary 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 specified
Person or a Restricted Subsidiary thereof (but not in excess of the amount of
the net income of such other Person for such period), (b) the Net Income of any
Restricted Subsidiary of such Person 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 (other
than the Working Capital Facility to the extent such restrictions are in
compliance with Section 4.08 hereof), provided that the Net Income of any
Restricted Subsidiary shall 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 or another Restricted Subsidiary as
a dividend, (c) 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 and (d) the cumulative effect of a change in accounting principles
shall be excluded.
"Continuing Directors" means individuals who on the Issue Date constituted
the Board of Directors of the Company, together with any new directors (a) whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company, was approved by a vote of at least a majority of
the directors of the Company then still in office who were either directors on
the Issue Date or whose election or nomination for election was previously so
approved or (b) who were designated by any one of the Permitted Holders or any
combination thereof or were nominated or elected by any Permitted Holder or any
designee thereof.
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"Corporate Trust Office" 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 Credit Parties.
"Credit Agreement" has the meaning provided in the recitals hereto.
"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 Article II hereof, substantially in
the form of Exhibit A hereto, except that such Note shall not bear the Global
Note Legend.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.02(e) hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" means or include such successor.
"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 that any Capital Stock which would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require the Company to repurchase or redeem such Capital Stock upon
the occurrence of a Change of Control or an Asset Sale occurring prior to the
final Stated Maturity of the Notes shall not constitute Disqualified Stock if
the change of control and asset sale provisions applicable to such Capital Stock
are no more favorable to the holders of such Capital Stock than the provisions
applicable to the Notes contained in Sections 4.15 and 4.10(a) hereof,
respectively, and such Capital Stock specifically provides that the Company will
not repurchase or redeem any such Capital Stock pursuant to such provisions
prior to the Company's repurchase or redemption of such Notes as are required to
be repurchased or redeemed pursuant to Sections 4.15 and 4.10(a) hereof,
respectively.
"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).
Indenture
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"Euro" means the single currency (whether known as the euro or otherwise)
of the participating member states of the European Union.
"Euroclear" means JPMorgan Chase Bank, Brussels office, as operator of The
Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means (a) Indebtedness of the Company and its
Restricted Subsidiaries in existence on September 30, 2002 that is in existence
on the Issue Date, and (b) Capital Lease Obligations with respect to
[___________] not to exceed $[_______] and incurred after September 30, 2002 and
prior to the Issue Date.
"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 date hereof.
"GCUK" means Global Crossing Intermediate UK Holdings Ltd. (UK), a company
organized under the laws of England and Wales.
"Global Marine" means Global Marine Systems Limited, a company organized
under the laws of England and Wales.
"Global Note" means any Note issued hereunder in registered global form in
the name of the Depositary or its nominee.
"Global Note Legend" has the meaning provided in Section 2.05(d) hereof.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"Guarantee Supplement" means a Supplement to this Indenture, substantially
in the form of Exhibit B hereto, or in such other form as shall be satisfactory
in form and substance to the Administrative Agent under the Credit Agreement and
to the Official Creditors' Committee (as confirmed in writing on the Issue Date
to the Trustee by a representative of the Administrative Agent and the Official
Creditors' Committee) and as shall be attached to this Indenture on the Issue
Date, executed after the date hereof by any Subsidiary of the Company.
Indenture
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"Guaranteed Obligations" means the obligation of the Issuer to make the
full and punctual payment of principal of and interest on the Notes when due,
whether at maturity, by acceleration, by redemption, by required repurchase or
otherwise, and all other monetary obligations of the Issuer under this Indenture
and the Notes.
"Guarantors" means each party named as such on the signature pages to this
Indenture, and each party that shall become a Guarantor hereunder after the date
hereof pursuant to Section 4.19 hereof.
"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.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for, provided that any Indebtedness or Capital Stock of a Person existing at the
time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time it becomes a Subsidiary. The term "Incurrence" when used as a noun shall
have a correlative meaning.
"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 bankers' acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any Property or representing any Hedging Obligations (taking
into account such Hedging Obligations' ▇▇▇▇-to-market value), 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 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), all obligations of such Person in respect of any
Qualified Receivables Transaction 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, (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 and (iii) in the case of a Qualified Receivables Transaction which
provides for the sale of Receivables, the aggregate amount of Receivables
transferred pursuant to such Qualified Receivables Transaction (x) in the case
of Receivables transferred as part of an asset securitization facility, the
outstanding amount of funding under such facility at such time of determination,
and, in the case of Receivables sold pursuant to a factoring or sale
arrangement, the aggregate consideration received by the Company or any of its
Indenture
-14-
Domestic Subsidiaries pursuant to such arrangements minus the sum of (y) for any
such Receivables that have been paid (whether by the underlying account obligor
or a guarantor or surety therefor) the amount paid by the purchaser thereof to
the Company and its Domestic Subsidiaries pursuant to such arrangement in
respect of such Receivables and (z) the amount repaid by the Company in respect
of any such Receivables that have been retransferred to the Company or any of
its Domestic Subsidiaries by the respective purchaser thereof in such
arrangement.
"Indenture Exclusive Collateral" means (a) all Equity Interests in GCUK and
Global Marine and their respective Subsidiaries, (b) all Property of GCUK and
Global Marine and their respective Subsidiaries (other than Property pledged in
favor of Camelot pursuant to the Camelot Deed), (c) any amounts standing to the
credit of the Specified Subsidiary Asset Sale Proceeds Account or the Specified
Subsidiary Casualty Event Proceeds Account and (d) all proceeds of any of the
foregoing (including any proceeds of a sale of the foregoing).
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Independent" when used with respect to any specified Person means such a
Person who (a) does not have any direct financial interest or any material
indirect financial interest in the Company or any Subsidiary, the Trustee or in
any Affiliate of any of them and (b) is not connected with the Company or any
Subsidiary, the Trustee or any such Affiliate as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
Whenever it is provided that any Independent Person's opinion or certificate
shall be furnished to the Trustee, such Person shall be appointed by the Company
and approved by the Trustee in the exercise of reasonable care and such opinion
or certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning thereof.
"Intercreditor Agreement" means an Intercreditor Agreement, substantially
in the form of Exhibit C hereto, or in such other form as shall be satisfactory
in form and substance to the Administrative Agent under the Credit Agreement and
to the Official Creditors' Committee (as confirmed in writing on the Issue Date
to the Trustee by a representative of the Administrative Agent and the Official
Creditors' Committee) and as shall be attached to this Indenture on the Issue
Date, as the same shall be modified and supplemented and in effect from time to
time.
"Interest Payment Date" means each semi-annual interest payment date which
shall fall on __________ and __________ of each year, and the date of the Stated
Maturity of the Notes, subject in each case to Section 12.06 hereof. Interest on
the Notes will accrue on the principal amount of the Notes from the Issue Date.
"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,
Indenture
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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 (including in connection with any merger or
consolidation), 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 penultimate paragraph of Section 4.07
hereof.
"Issue Date" means __________, the date on which the Notes were issued.
"Issuer" means the party named as such in the first paragraph of this
Indenture.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Issuer by an officer of the Issuer with actual authority to
bind the Issuer on such matters, and delivered to the Trustee.
"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 advances made to directors, officers or
employees of the Company or any Restricted Subsidiary thereof in the ordinary
course of business, including in respect of travel, entertainment or
moving-related expenses, in an aggregate amount as to all such advances to all
directors, officers and employees not exceeding $1,000,000 at any one time
outstanding.
"Material Subsidiary" means (a) the Issuer and any Subsidiary of the
Company that is a Guarantor on the Issue Date (and any one or more Subsidiaries
into which any such Guarantor is merged or consolidated, or to which all or
substantially all of its assets are transferred), (b) GCUK, Global Marine and
any of their respective
Indenture
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Subsidiaries, (c) any one or more Restricted Subsidiaries of the Company
(including any Restricted Subsidiaries formed or acquired after the Issue Date)
in which the aggregate Investment (whether in the form of equity or debt, and
whether made in an individual transaction or series of related transactions) by
the Company and its Restricted Subsidiaries exceeds $5,000,000, (d) any
Restricted Subsidiary of the Company that has aggregate outstanding Indebtedness
of $1,000,000 or more, (e) any Restricted Subsidiary of the Company that
Guarantees any Indebtedness under the Working Capital Facility, (f) any
Restricted Subsidiary of the Company whose revenues for the period of the four
most recently ended fiscal quarters is 2% or more of the aggregate consolidated
revenues of the Company and its Restricted Subsidiaries, (g) any Restricted
Subsidiary that owns any cable or fiber capacity (or rights to any cable or
fiber capacity) that is a necessary link (assuming no cable or fiber capacity or
rights thereto are available from any other provider) to enable any other
Material Subsidiary to conduct any material portion of its operations or
business, (h) any Restricted Subsidiary that would be a "significant subsidiary"
as defined in Article I, Rule 1-02 of Regulation S-X, promulgated pursuant to
the Securities Act, as such Regulation is in effect on the date of this
Indenture, and (i) any Restricted Subsidiary of the Company that owns any Equity
Interest in any Material Subsidiary.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Net Cash Proceeds" means the aggregate amount of Qualified Cash
Equivalents received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale, Specified Subsidiary Asset Sale or Specified
Subsidiary Casualty Event, as the case may be (including any Qualified Cash
Equivalents received upon the sale or other disposition of any other
consideration received in any Asset Sale, Specified Subsidiary Asset Sale or
Specified Subsidiary Casualty Event, as the case may be, or otherwise received
or realized in respect of such other consideration), net of (a) the direct costs
relating to such Asset Sale, Specified Subsidiary Asset Sale or Specified
Subsidiary Casualty Event, as the case may be (including legal, accounting and
investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, (b) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (c) any repayments by the Company and its Restricted
Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is secured
by a Lien (other than a Lien that is junior to the Lien of the Trustee hereunder
and under the Security Documents) on the property that is the subject of such
Asset Sale, Specified Subsidiary Asset Sale or Specified Subsidiary Casualty
Event and (ii) the transferee of (or holder of a Lien on) such property requires
that such Indebtedness be repaid as a condition to the purchase of such property
and (d) any reserve for adjustment in respect of an Asset Sale (other than a
Casualty Event that would otherwise constitute an Asset Sale) or Specified
Subsidiary Asset Sale established in accordance with GAAP, provided that upon
any later recharacterization of such reserve on the balance sheet of the Company
and its Restricted Subsidiaries as no longer necessary or applicable, the amount
of such reserve shall be deemed to be Net Cash Proceeds hereunder.
Indenture
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"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP, excluding, however, (a) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (i) any Asset Sale, Specified Subsidiary Asset
Sale or Specified Subsidiary Casualty Event (including dispositions made
pursuant to sale and leaseback transactions) or (ii) 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 (b) any extraordinary and non-recurring gain or loss, together
with any related provision for taxes on such extraordinary and non-recurring
gain or loss.
"New Preferred Shares" means shares of New Preferred Stock (as such term is
defined in the Plan).
"Non-Recourse Debt" means Indebtedness (a) as to which neither the Company
nor any Restricted Subsidiary thereof (i) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (ii) is directly or
indirectly liable (as a guarantor or otherwise) and (b) 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 thereof to declare a default under such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its Stated Maturity.
"Note Guarantee" means the Guarantee of the Notes provided in Article XI
hereof.
"Note Register" has the meaning provided in Section 2.03 hereof.
"Notes" has the meaning provided in the preamble to this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Credit Party, the Chairman of the
Board, the President, the Chief Financial Officer, any Senior Vice President,
any Vice President, the Treasurer, or the Secretary or any other person who has
actual authority to bind such Credit Party thereto on such matters.
"Officers' Certificate" means a certificate signed by two Officers of the
Company which complies with the requirements hereof, each of which shall include
the statements provided for in Section 12.04 hereof.
Indenture
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"Official Creditors' Committee" means the statutory committee of unsecured
creditors appointed in the Debtors' cases under chapter 11 of the Bankruptcy
Code, as constituted from time to time.
"Opinion of Counsel" means a written opinion signed by legal counsel who is
acceptable to the Trustee, which counsel may be an employee of or counsel to the
Company or the Trustee, and which Opinion of Counsel shall include the
statements provided for in Section 12.04 hereof.
"Permitted Business" means any business that is the same as or related,
ancillary or complementary to any of the businesses of the Company or any of its
Restricted Subsidiaries on the date of this Indenture, and shall include the
activities of any Restricted Subsidiary in respect of any Qualified Receivables
Transaction.
"Permitted Holder" means Singapore Technologies Telemedia Pte Ltd., a
company organized under the laws of Singapore, and ▇▇▇▇▇▇▇▇▇ Telecommunications
Limited, a company organized under the laws of Hong Kong, together with their
respective Subsidiaries and Affiliates.
"Permitted Investments" means (a) any Investment in cash and Cash
Equivalents; (b) any Investment in the Company or in Restricted Subsidiaries of
the Company that are Credit Parties and that are engaged in a Permitted
Business; (c) any Investment by the Company or any of its Restricted
Subsidiaries in any Person, if as a result of such Investment (A) such Person
becomes a Restricted Subsidiary of the Company that is a Credit Party that is
engaged in a Permitted Business or (B) 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 Restricted Subsidiary of the
Company that is a Credit Party that is engaged in a Permitted Business; (d) any
Investment made as a result of the receipt of consideration other than Qualified
Cash Equivalents from (1) an Asset Sale that was made pursuant to and in
compliance with Section 4.10(a) hereof or (2) a Specified Subsidiary Asset Sale
that was made pursuant to and in compliance with Section 4.10(b) hereof; (e) any
acquisition of Property solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company; and (f) the acquisition by a
Receivables Entity in connection with a Qualified Receivables Transaction of
Equity Interests of a trust or other Person established by such Receivables
Entity to effect such Qualified Receivables Transaction, and any other any
Investment by the Company or a Restricted Subsidiary of the Company in a
Receivables Entity or any Investment by a Receivables Entity in any other Person
in connection with a Qualified Receivables Transaction (so long as any such
other Investment is in the form of a note or other instrument that the
Receivables Entityor other Person is required to repay as soon as practicable
from available cash collections less amounts required to be established as
reserves pursuant to contractual agreements with entities that are not
Affiliates of the Company entered into as part of a Qualified Receivables
Transaction), provided that the amount of Investments pursuant to this clause
(f) do not exceed, in the aggregate, $5,000,000.
Indenture
-19-
"Permitted Liens" means (a) Liens to secure Indebtedness and other
Obligations under the Working Capital Facility permitted to be Incurred under
this Indenture and the Security Documents, provided that (i) the aggregate
principal amount of Indebtedness secured by such Liens shall not exceed the
amount of Indebtedness permitted to be Incurred pursuant to clause (a) of the
second paragraph of Section 4.09 hereof and (ii) such Liens do not extend to the
Property of or equity in GCUK or its Subsidiaries or Global Marine or any of
their respective Subsidiaries; (b) Liens to secure Obligations on the Notes and
the Note Guarantees under this Indenture and the Security Documents; (c) Liens
by any Subsidiary of the Company in favor of the Issuer or any Guarantor; (d)
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; (e) 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; (f) Liens,
pledges and deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of statutory
obligations; (g) Liens, pledges or deposits made to secure the performance of
tenders, bids, leases, public or statutory obligations, sureties, indemnities,
performance or other similar bonds and other obligations of like nature incurred
in the ordinary course of business (exclusive of obligations for the payment of
borrowed money); (h) zoning restrictions, servitudes, easements, rights-of-way,
restrictions and other similar charges or encumbrances incurred in the ordinary
course of business which, in the aggregate, do not materially detract from the
value of the Property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or its Restricted Subsidiaries; (i) Liens
arising out of judgments or awards against or other court proceedings concerning
the Company or any Restricted Subsidiary thereof with respect to which the
Company or such Restricted Subsidiary is prosecuting an appeal or proceeding for
review and the Company or such Restricted Subsidiary is maintaining adequate
reserves in accordance with GAAP; (j) Liens incurred in the ordinary course of
business (including mechanics liens) of the Company or any of its Restricted
Subsidiaries with respect to obligations that do not exceed $2,500,000 at any
one time outstanding and that (i) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credits in the ordinary course of business) and (ii) do not in the aggregate
materially detract from the value of the Property subject thereto or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary; (k) Liens securing Purchase Money Indebtedness referred
to in clause (f) of the second paragraph of Section 4.09 hereof or in Section
4.13 hereof, provided that the aggregate amount of Indebtedness entitled to the
benefits of such Liens (including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any such Indebtedness) shall not exceed
$50,000,000 at any time outstanding; (l) any interest or title of a lessor in
the Property subject to any lease other than a capital lease; (m) Liens arising
in connection with a Qualified Receivables Transaction, provided, that (i) the
aggregate principal amount of Indebtedness secured by such Liens shall not
exceed the amount of Indebtedness permitted to be Incurred in connection
therewith pursuant to clause (b) of the second paragraph of Section 4.09 hereof
and
Indenture
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(ii) such Liens do not extend to the Property of or Equity Interests in the
Company or any Restricted Subsidiary other than the respective Receivables being
acquired and, if the purchaser thereof is a Receivables Entity, the Equity
Interests in such Receivables Entity; (n) Liens existing on September 30, 2002
that are in existence on the Issue Date; and (o) Liens in respect of Capital
Lease Obligations with respect to [___________] not to exceed $[_______] and
incurred after September 30, 2002 and prior to the Issue Date.
For purposes hereof, any Liens Incurred by the Company or any of its
Restricted Subsidiaries subsequent to September 30, 2002 (other than Liens
described in clause (o) above) shall be deemed to have been Incurred on the
Issue Date (and, to the extent that such Liens would not have been permitted to
have been Incurred at such time, the Company shall be deemed to be in breach of
Section 4.12 hereof).
"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: (a) 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 reasonable expenses incurred
in connection therewith); (b) 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; (c) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, 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 and Note Guarantees 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; (d) such Indebtedness is Incurred either by the
Company or the Restricted Subsidiary thereof who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
and (e) such Indebtedness is not entitled to the benefits of any Liens upon any
Property of the Company or any Restricted Subsidiary except to the extent of
Liens on Property that constituted collateral security for 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.
"Possessory Collateral" means any Shared Collateral consisting of a
security (as defined in the Uniform Commercial Code) evidenced by a security
certificate
Indenture
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(as so defined), and any other Shared Collateral in which a Lien may be
perfected through physical possession by the secured party or any agent therefor
of an instrument or other document evidencing such Shared Collateral.
"Preferred Stock," of any Person, means Capital Stock of such Person
of any class or series (however designated) that ranks prior, as to payment of
dividends or as to the distribution of Property upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class or series of such Person.
"Property" means any interest in any rights, assets or property of any
kind whatsoever (including all cash and Cash Equivalents, and all Equity
Interests), whether real, personal or mixed and whether tangible or intangible,
whether now existing or hereafter arising and wherever located.
"Purchase Money Indebtedness" means Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case Incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the business
of the Company or a Restricted Subsidiary thereof.
"Qualified Cash Equivalents" means (a) U.S. Dollars, Euros, English
Pounds Sterling and Swiss Francs, (b) securities issued or directly and fully
guaranteed or insured by the government, or any agency or instrumentality, of
the United States, France, Germany, Switzerland or the United Kingdom (each, a
"Qualified Country"), provided that the full faith and credit of such Qualified
Country is pledged in support thereof, having maturities of not more than 90
days from the date of acquisition, (c) certificates of deposit and eurodollar
time deposits with maturities of 90 days or less from the date of acquisition,
bankers' acceptances with maturities not exceeding 90 days and overnight bank
deposits, in each case with any commercial bank organized under the law of a
Qualified Country, having capital and surplus in excess of $500,000,000 (or the
equivalent thereof in any other currency), and whose long-term debt is rated A-3
or A- or higher or, with respect to Switzerland or any country in the European
Union, and Aa2 or AA or higher according to ▇▇▇▇▇'▇ or S&P, and denominated in
U.S. Dollars, Euros or English Pounds Sterling, (d) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in the preceding clauses (b) and (c) entered into with any financial
institution meeting the qualifications specified in the preceding clause (c),
(e) commercial paper having the highest rating obtainable from ▇▇▇▇▇'▇ or S&P
and in each case maturing within 90 days after the date of acquisition, issued
by a corporation organized under the law of a Qualified Country and denominated
in U.S. Dollars, Euros or English Pounds Sterling and (f) money market funds at
least 95% of the assets of which constitute Qualified Cash Equivalents of the
types and maturities described in the preceding clauses (b) through (d).
"Qualified GCUK Asset Sale" means a sale of all or substantially all
of the assets or Equity Interests of GCUK and its Subsidiaries to, or a merger
of GCUK
Indenture
-22-
with, a Person who is not an Affiliate of the Company, in any case so long as
(a) the Company, directly or indirectly, owns greater than 50%, in the case of a
non-public entity, or 35%, in the case of a public entity, of the Voting Stock
of such Person (measured by voting power rather than number of shares)
immediately following such sale or merger and (b) the aggregate net amount of
Investments made by the Company and its Restricted Subsidiaries in GCUK and its
Subsidiaries, and Property transferred by the Company and its Restricted
Subsidiaries to GCUK and its Subsidiaries, after September 30, 2002 and prior to
the date upon which such sale or merger shall occur (if, as a result of such
sale or merger, none of GCUK or any of its Subsidiaries is no longer a Credit
Party hereunder) shall not exceed $5,000,000, provided that such $5,000,000
limit shall not be applicable to Investments in cash made to GCUK and its
Subsidiaries in the ordinary course of business to finance working capital needs
of GCUK and its Subsidiaries, or to finance capital expenditures of GCUK and its
Subsidiaries with respect to businesses conducted by GCUK and its Subsidiaries
on the Issue Date.
"Qualified Receivables Transaction" means any transaction or series of
transactions entered into by the Company or any of its Restricted Subsidiaries
pursuant to which the Company or any of its Restricted Subsidiaries sells,
conveys or otherwise transfers to (i) a Receivables Entity (in the case of a
transfer by the Company or any of its Restricted Subsidiaries) and (ii) any
other Person (in the case of a transfer by a Receivables Entity), or grants a
security interest in, any Receivables (whether now existing or hereafter
arising) of the Company or any of its Restricted Subsidiaries.
"Qualified Restricted Subsidiary" means any Restricted Subsidiary of
the Company (other than a Restricted Subsidiary, or any successor thereto, that
is a Restricted Subsidiary of the Company on the Issue Date) that (a) becomes a
Restricted Subsidiary of the Company engaged in a Permitted Business after the
Issue Date as a result of a Restricted Investment by the Company in compliance
with Section 4.07 hereof and (b) as to which
(1) the Company makes all commercially reasonable efforts to comply
with the first paragraph of Section 4.19 hereof but, notwithstanding such
efforts, is unable to so comply, and
(2) the Company delivers to the Trustee and each of the Holders
(including each Beneficial Owner of the Notes to the extent practicable),
at the Company's expense, a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that (A) such
Restricted Investment (or, as applicable, Qualified GCUK Asset Sale) has
been approved by the Board of Directors of the Company (including a
majority of the disinterested members of such Board of Directors) and (B)
the Board of Directors of the Company (after having taken advice on the
Restricted Investment from an Independent accounting, appraisal or
investment banking firm or firms of recognized national standing in the
United States) in good faith determines that such Restricted Investment
(or, as applicable, Qualified GCUK Asset Sale) will not result in any
decline in value of the Collateral (including the equity thereof)
represented by
Indenture
-23-
such Restricted Subsidiary (including, as applicable, GCUK and its
Subsidiaries) and will not result in a decline in the market value of the
Notes;
it being understood that, if the Company does not comply with sub-clause (2)
above, the Company shall be required to comply with the requirements of the
first paragraph of Section 4.19 hereof.
"Receivables" means all accounts receivable of the Company or any
Restricted Subsidiary arising out of the sale of inventory, or capacity on any
cable or fiber system owned, controlled or operated by the Company or any
Restricted Subsidiary thereof or of telecommunications capacity or transmission
rights acquired by the Company or any Restricted Subsidiary thereof, or the
provision of services by the Company or any of its Restricted Subsidiaries, in
each case, in the ordinary course of business, together with any assets related
thereto including all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Receivables Entity" means a Subsidiary of the Company that engages in
no activities other than in connection with the financing of Receivables and
which is designated by the Board of Directors of the Company (as provided below)
as a Receivables Entity (a) no portion of the Indebtedness or any other
Obligations (contingent or otherwise) of which (i) is guaranteed by the Company
or any Subsidiary of the Company (excluding Guarantees of Obligations, other
than the principal of, and interest on, Indebtedness, pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction), (ii) is recourse to or obligates the Company or any Restricted
Subsidiary of the Company in any way other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction or (iii)
subjects any property or asset of the Company or any Restricted Subsidiary of
the Company (other than Receivables), directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction, (b) with which
neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing Receivables and (c) with which neither the Company nor
any Restricted Subsidiary of the Company has any obligation to maintain or
preserve such Subsidiary' s financial condition or cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board
of Directors of the Company will be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors of the
Company giving effect to
Indenture
-24-
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Record Date" means (a) for the interest payable (i) on any Interest
Payment Date, the _________ or ________ [insert date 15 days prior to Interest
Payment Date] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date and (ii) on the date of the Stated Maturity
of the Notes, the day (whether or not a Business Day) immediately preceding such
date and (c) for the interest payable on any other date or for any other
purpose, the date specified as such in accordance with the terms of this
Indenture.
"Reference Period" means, as of any date of determination, the period
of four complete fiscal quarters ending prior to such date of determination for
which financial statements of the Company are available, or such fewer number of
complete fiscal quarters as have lapsed subsequent to the Issue Date for which
such financial statements are available.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means a Security Agreement, substantially in the
form of Exhibit D hereto, or in such other form as shall be satisfactory in form
and substance to the Administrative Agent under the Credit Agreement and to the
Official Creditors' Committee (as confirmed in writing on the Issue Date to the
Trustee by a representative of the Administrative Agent and the Official
Creditors' Committee) and as shall be attached to this Indenture on the Issue
Date, as the same shall be modified and supplemented and in effect from time to
time.
"Security Documents" means, collectively, the Security Agreement, and
each security agreement, pledge agreement, assignment, mortgage or other similar
Indenture
-25-
instrument or documents entered into or delivered pursuant to the Security
Agreement, or pursuant to Article VI hereof, in each case as the same shall be
modified and supplemented and in effect from time to time.
"Shared Collateral" means all Collateral other than the Indenture
Exclusive Collateral.
"Specified Subsidiary Asset Sale" means the sale, lease, conveyance or
other disposition of any Property of, and the issuance of Equity Interests by,
any of GCUK or its Subsidiaries (including any Qualified GCUK Asset Sale) or
Global Marine or its Subsidiaries, or the sale of Equity Interests in GCUK
(including any Qualified GCUK Asset Sale) or Global Marine or any of their
respective Subsidiaries, in the case of any of the preceding, whether in a
single transaction or a series of related transactions (x) that have a fair
market value in excess of $500,000 or (y) for consideration having a fair market
value in excess of $500,000. Notwithstanding the foregoing, the following items
will not be deemed to be Specified Subsidiary Asset Sales:
(a) (i) sales of inventory in the ordinary course of business and (ii)
any sale, lease, transfer, conveyance or other disposition of capacity on
any cable or fiber system owned, controlled or operated by GCUK, Global
Marine or any of their respective Subsidiaries or of telecommunications
capacity or transmission rights acquired by GCUK, Global Marine or any of
their respective Subsidiaries, in each case in the ordinary course of
business, provided that, any sale, lease, conveyance or other disposition
of capacity on any such cable or fiber system, or of any such
telecommunications capacity or transmission rights, shall not be considered
to be in the ordinary course of business for purposes hereof if, after
giving effect to such sale, GCUK and its Subsidiaries, or Global Marine and
its Subsidiaries, as applicable, no longer operate and control the cable or
fiber system of which such capacity or rights is a part;
(b) a transfer of Property by GCUK to any of its Wholly Owned
Subsidiaries that is a Credit Party or by any of its Subsidiaries to GCUK
or to another Wholly Owned Subsidiary of GCUK that is a Credit Party, and a
transfer of Property by Global Marine to any of its Wholly Owned
Subsidiaries that is a Credit Party or by any of its Subsidiaries to Global
Marine or to a Wholly Owned Subsidiary of Global Marine that is a Credit
Party;
(c) an issuance of Equity Interests to (x) GCUK or a Wholly Owned
Subsidiary of GCUK that is a Credit Party by a Subsidiary of GCUK or (y)
Global Marine or a Wholly Owned Subsidiary of Global Marine that is a
Credit Party by a Subsidiary of Global Marine;
(d) a Restricted Payment that is permitted by Section 4.07 hereof,
other than (x) a Restricted Payment by GCUK or any of its Subsidiaries in
any of the Subsidiaries of the Company other than GCUK and its Subsidiaries
or (y) a
Indenture
-26-
Restricted Payment by Global Marine or any of its Subsidiaries in any of
the Subsidiaries of the Company other than Global Marine and its
Subsidiaries;
(e) the sale or other disposition of cash or Cash Equivalents; or
(f) a disposition of obsolete or worn-out equipment or equipment that
is no longer useful in the conduct of the business of GCUK and its
Subsidiaries, or Global Marine and its Subsidiaries, as applicable, and
that is disposed of in the ordinary course of business.
Notwithstanding anything to the contrary in this definition of
"Specified Subsidiary Asset Sale," the sale of all or substantially all of the
assets or Equity Interests of GCUK or any of its Subsidiaries (including
pursuant to a Qualified GCUK Asset Sale) or Global Marine or any of its
Subsidiaries, in any case in one transaction or a series of related
transactions, shall constitute a "Specified Subsidiary Asset Sale."
"Specified Subsidiary Asset Sale Proceeds Account" means an account
established and maintained by the Trustee under this Indenture into which
proceeds of Specified Subsidiary Asset Sales hereunder are to be deposited from
time to time in accordance with the provisions of this Indenture.
"Special Subsidiary Casualty Event" means any Casualty Event with
respect to any Property of GCUK, Global Marine or any of their respective
Subsidiaries.
"Specified Subsidiary Casualty Event Proceeds Account" means an
account established and maintained by the Trustee under this Indenture into
which proceeds of Specified Subsidiary Casualty Events hereunder are to be
deposited from time to time in accordance with the provisions of this Indenture.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such 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.
"Subsidiary" means, with respect to any Person, (a) 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 (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
Indenture
-27-
"Successor Entity" means any Person which, as a result of a Person
converting into, or merging, consolidating or amalgamating with or into, or
selling, transferring or conveying all or substantially all of its Property to,
or being liquidated into, such Person, succeeds to the interests of such Person.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code 77aaa-77bbb), as in effect from time to time until this
Indenture is qualified under the Trust Indenture Act and, after such
qualification, means such Act as in effect on the date of such qualification,
except as provided in Section 10.06 hereof, provided that in the event the Trust
Indenture Act of 1939 is amended after such date, "TIA" or "Trust Indenture Act"
means, to the extent required by any such amendments, the Trust Indenture of
1939 as so amended.
"Trust Moneys" has the meaning provided in Section 9.01 hereof.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a Successor Entity replaces it in accordance with the provisions
of Article VIII hereof, and, thereafter, such term means such Successor Entity.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"United States Bankruptcy Code" has the meaning provided in the
recitals hereto.
"Unrestricted Subsidiary" means (i) subject to the third paragraph of
Section 4.18 hereof, AGC and each of its Subsidiaries and (ii) any Subsidiary of
the Company that is a Receivables Entity and that is designated by the Board of
Directors of the Company as an "Unrestricted Subsidiary" pursuant to a Board
Resolution of the Company, but only to the extent that: (a) with respect to AGC
and its Subsidiaries, AGC is a Subsidiary of the Company, (b) such Subsidiary
has no Indebtedness other than Non-Recourse Debt; (c) such Subsidiary does not
own any Equity Interest in any Material Subsidiary; (d) neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect obligation to
maintain or preserve the financial condition of such Subsidiary or to cause such
Subsidiary to achieve any specified levels of operating results; and (e) such
Subsidiary has not Guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; provided that, notwithstanding the foregoing, any Restricted
Subsidiary that sells Receivables to an Unrestricted Subsidiary that is a
Receivables Entity shall be allowed to provide such representations, warranties,
covenants and indemnities as are customarily required in such transactions so
long as no such representations, warranties, covenants or indemnities constitute
a Guarantee of payment or recourse against credit losses.
If, at any time, any of AGC or any of its Subsidiaries or any
Subsidiary that is a Receivables Entity designated as an "Unrestricted
Subsidiary" would fail to meet the foregoing requirements (other than by reason
of such Subsidiary no longer being a
Indenture
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Subsidiary of the Company), then such Subsidiary shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and all Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the
Company as of such date (and, if Indebtedness is not permitted to be Incurred as
of such date, the Company shall be in default hereunder).
"U.S. Dollars" or the sign "$" means the currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"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
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) 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 (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) 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 such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a 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 such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Working Capital Facility" means, a facility entered into by a Credit
Party (other than GCUK or Global Marine or any of their subsidiaries), as
borrower, and one or more of the Guarantors as guarantors, with one or more
banks or other institutional lenders not Affiliates of the Company providing for
the making of revolving credit loans to the Issuer, and the issuance of letters
of credit for the account of the Issuer, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time,
provided that such term shall not include any facility or agreement in respect
of a Qualified Receivables Transaction.
"Working Capital Facility Limit" means, at any time, (a) $150,000,000
minus (b) the sum of (i) the aggregate amount of any Net Cash Proceeds of an
Asset Sale applied by the Company or any of its Restricted Subsidiaries to the
payment of any amount outstanding under the Working Capital Facility (whether or
not resulting in a
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related reduction in commitments to extend credit thereunder) and (ii) the
aggregate payments of principal of the Working Capital Facility made from the
proceeds of Shared Collateral either following a default in payment under the
Working Capital Facility or the foreclosure or other exercise or remedies by the
lenders (or the agent therefor) under the Working Capital Facility in respect of
any Lien therein.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction" 4.11
---------------------
"Asset Sale Offer" 4.10
----------------
"Change of Control Offer" 4.15
-----------------------
"Change of Control Payment" 4.15
-------------------------
"Change of Control Payment Date" 4.15
------------------------------
"Designated Holder" 4.04
-----------------
"Event of Default" 7.01
----------------
"Excess Proceeds" 4.10
---------------
"Offer Amount" 3.09
------------
"Offer Period" 3.09
------------
"Paying Agent" 2.03
------------
"Purchase Date" 3.09
-------------
"Registrar" 2.03
---------
"Restricted Payments" 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" means a Credit Party.
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All other terms used 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 in this Indenture;
(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 words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(7) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the
definition of GAAP set forth above;
(8) "including" means "including without limitation"; and
(9) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE II THE NOTES
SECTION 2.01. Form and Dating.
(a) Form of Notes. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto which is
hereby incorporated in and expressly made a part of this Indenture with the
applicable securities legends. The Notes may have notations, legends or
endorsements required by law, stock exchange rules or agreements to which the
Issuer is subject, if any, or usage. The Issuer shall approve the form of the
Notes and any notation, legend or endorsement on the Notes. Each Note shall be
dated the date of its authentication.
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(b) Manner of Production. The certificates representing the Notes
shall be typed, printed, lithographed or engraved or produced by any combination
of these methods or may be produced in any other manner permitted by the rules
of any securities exchange on which the Notes may be listed, all as determined
by the Officers of the Issuer executing such Notes, as evidenced by their
execution of such Notes.
SECTION 2.02. Execution, Authentication and Denominations.
(a) Execution. Two Officers shall execute the Notes for the Issuer by
facsimile or manual signature in the name and on behalf of the Issuer. The seal
of the Issuer, if any, shall be reproduced on the Notes. If an Officer whose
signature is on a Note no longer holds that office at the time the Trustee or
authenticating agent authenticates the Note, the Note shall be valid
nevertheless.
(b) Issuance of Notes. The Trustee or any duly appointed
authenticating agent shall authenticate and deliver Notes upon receipt of an
Issuer Order and an Officers' Certificate and, if so requested by the Trustee,
an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication of Notes. Such Issuer Order shall specify
the amount of Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated. Unless otherwise specified in such Issuer
Order, the Notes shall be issued as Global Notes. On the date hereof, the
aggregate principal amount of Notes outstanding shall equal $200,000,000, and
the aggregate principal amount of Notes outstanding at any time thereafter shall
not exceed said amount, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 2.05, 2.06, 2.07 or 2.08 hereof.
(c) Authentication Agents. The Trustee may appoint an authenticating
agent to authenticate Notes. Unless limited by the terms of such appointment, 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 authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
(d) Certificates of Authentication. A Note shall not be valid until
the Trustee or any duly appointed authenticating agent manually signs the
certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(e) Global Notes. Unless otherwise specified in an Issuer Order as
contemplated by Section 2.02(b) hereof, the Notes shall be issued in the form of
Global Notes, and the Depository thereof shall initially be the Depository Trust
Company or any successor thereof.
(f) Denominations. The Notes shall be issuable only in fully
registered form, without coupons, in minimum denominations of $[ ].
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SECTION 2.03. Registrar and Paying Agent.
(a) Registrar. The Issuer shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (the
"Registrar") and, through the Trustee as provided in Section 2.03(d) hereof, an
office or agency where Notes may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange (the "Note Register"). The Issuer may have one or more co-registrars
and one or more additional Paying Agents. The term "Paying Agent" includes any
additional paying agents.
(b) Agents. The Issuer shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture which shall incorporate
the terms of the TIA, to the extent required under the TIA. Such agreement shall
implement the provisions of this Indenture that relate to such Agent. The Issuer
shall give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Issuer fails to
maintain a Registrar and/or Paying Agent, the Trustee shall act as such
Registrar, Paying Agent and/or agent for service of notices and demands. The
Issuer may remove any Agent upon written notice to such Agent and the Trustee,
provided that no such removal shall become effective until (i) the acceptance of
an appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Issuer and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. None of the Company, any Subsidiary
of the Company or any Affiliate of any of them may act as Paying Agent,
Registrar or co-registrar.
(c) Initial Appointments. The Issuer initially appoints the Trustee
as Registrar and Paying Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee, on or before each
Interest Payment Date and at such other times as the Trustee may reasonably
request, the names and addresses of the Holders as they appear in the Note
Register.
(d) Trustee to Act as Paying Agent. Notwithstanding anything to the
contrary herein, the Trustee shall at all times act as the Paying Agent
hereunder (although the Trustee may appoint one or more additional Paying
Agents).
SECTION 2.04. Paying Agent to Hold Money in Trust.
Prior to 3:00 p.m., New York City time, on the Business Day
immediately preceding each due date of the principal and interest on any Notes,
the Issuer shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such principal and interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal or
interest, if any, and (unless such Paying Agent is the Trustee) the Issuer will
promptly notify the Trustee of such action or any failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 2.04,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of 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 notice of any default by the Issuer (or any
other obligor upon the Notes) in the making of any payment of principal or
interest, if any;
(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 Issuer 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
Issuer 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 Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent and remaining
unclaimed for two years after such principal or interest has become due and
payable shall be paid to the Issuer at the request of the Issuer, and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease, provided that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Issuer 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 Issuer.
SECTION 2.05. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Issuer for Definitive
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Notes (i) in whole if the Issuer delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Issuer within 120
days after the date of such notice from the Depositary, (ii) in whole if the
Company in its sole discretion determines that Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee, or (iii) in part with respect to the portion thereof
attributable to the requesting Holder at any time or from time to time following
the occurrence of any Default or Event of Default, at the request of any Holder.
Upon the occurrence of any of the events in the preceding clause (i), (ii) or
(iii), Definitive Notes shall be issued in such names and in such amounts, as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in this Section 2.05 and Sections
2.06 and 2.08 hereof. Every Note authenticated and made available for delivery
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.05 or Section 2.06 or 2.08 hereof, shall be authenticated and,
except as provided in the second sentence of this Section 2.05(a), be made
available for delivery in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this
Section 2.05(a), provided that beneficial interests in a Global Note may be
transferred and exchanged consistent with the provisions hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures.
(c) Transfer and Exchange of Definitive Notes. Upon request by a
Holder of Definitive Notes and such Holder's compliance with the provisions of
this Section 2.05(c), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing.
(d) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form (the "Global Note Legend"):
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE
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TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED, IF IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND, IF IN PART, TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF."
(e) 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 2.09 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note, by the Trustee or by the Depositary at the direction of the
Trustee, to reflect such reduction.
(f) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuer
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an Issuer 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, provided that the Issuer may require
a payment of a sum sufficient to cover transfer tax, assessments, or
similar governmental charges payable in connection therewith.
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note that is to be redeemed 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 constitute the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same
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benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) Neither the Issuer nor the Registrar shall be required (A) to
issue, to register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the date of any
redemption of Notes under Article III hereof and ending at the close of
business on the date of such redemption or (B) to register the transfer of
or to exchange a Note between a Record Date and the Interest Payment Date
corresponding thereto.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Issuer, the Trustee and any Agent 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 Issuer, the
Guarantors, the Trustee or any Agent shall be affected by notice to the
contrary.
SECTION 2.06. Replacement Notes.
(a) Mutilated Notes, Etc. If a mutilated Note is surrendered to the
Registrar or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note of like tenor in the absence of notice to the Issuer or the
Trustee that such Note has been acquired by a bona fide purchaser and if the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder
sufficient in the judgment of the Trustee and the Issuer to protect the Issuer
and the Trustee and any agent of the Issuer and the Trustee from any loss which
any of them may suffer if a Note is replaced. In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Issuer in its discretion may redeem such Note instead of issuing a
new Note in replacement thereof.
(b) Replacement Notes. Every replacement Note is an additional
obligation of the Issuer and shall be entitled to the benefits of this Indenture
and of the Security Documents.
SECTION 2.07. Outstanding Notes.
(a) Outstanding Generally. Notes outstanding at any time shall
include all Notes that have been authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in
this Section 2.07 as not outstanding. If a Note is replaced pursuant to Section
2.06 hereof, it ceases to be outstanding unless and until the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide
purchaser. If the Paying Agent separates and holds in trust, on a maturity date,
money sufficient to pay Notes on such date, then on and after such date, such
Notes cease to be outstanding hereunder and interest thereon shall cease to
accrue.
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(b) Notes Held by Issuer or Affiliates. Subject to Section 7.07
hereof, a Note does not cease to be outstanding because the Issuer or one of its
Affiliates holds such Note, or because a Holder holds more than a specified
percentage of the Notes, provided that (i) in determining whether the Holders of
the requisite principal amount of the outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Issuer, any Credit Party or any other obligor upon the Notes or any
Affiliate of the Issuer or of such other obligor shall be disregarded and deemed
not to be outstanding, (ii) in determining whether the Holders of the requisite
principal amount of the outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder for any purpose
other than amendments or waivers referred to in Section 10.02(b) hereof, Notes
owned by any Holder that, together with its Affiliates, holds more than 15% of
the aggregate outstanding principal amount of the Notes, shall be disregarded
and deemed not to be outstanding and (iii) in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee knows to be so owned, as conclusively evidenced by the Note
Register, shall be so disregarded. Notes so owned which have been pledged in
good faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer or any other obligor upon the Notes
or any Affiliate of the Issuer or of such other obligor, or a Holder that holds
more than 15% of the aggregate outstanding principal amount of the Notes.
On the Issue Date, the Issuer shall furnish the Trustee with an
Officers' Certificate certifying the names of all Subsidiaries of the Company
and, to the extent known to it, all Affiliates of the Company. The Issuer shall
update such information from time to time by further Officers' Certificates
delivered promptly, after each request therefor from the Trustee. The Trustee
may conclusively rely on the most recent such Officers' Certificate received by
it. In addition, any Holder that, together with its Affiliates, shall hold more
than 15% of the aggregate outstanding principal amount of the Notes, shall so
notify the Trustee (and the Trustee shall, if requested by the Holders of 10% or
more of the aggregate outstanding principal amount of the Notes, request that a
Holder deliver to the Trustee an Officers' Certificate stating whether or not
such Holder, together with its Affiliates, holds more than 15% of the aggregate
outstanding principal amount of the Notes).
To the extent of any inconsistency between the TIA and the provisions
of this Section 2.07 the provisions of the TIA shall be controlling.
SECTION 2.08. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers of the Issuer executing the
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temporary Notes, as evidenced by their execution of such temporary Notes. If
temporary Notes are issued, the Issuer shall cause definitive Notes to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer designated for such
purpose pursuant to Section 2.03 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall be entitled to the same benefits under this
Indenture as definitive Notes.
SECTION 2.09. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for
cancellation (and shall deliver to the Trustee for cancellation any Notes
purchased by it pursuant to Section 4.10 or 4.15 hereof). The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee and no other Person shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of them in accordance with its normal procedure.
The Issuer may not issue new Notes to replace Notes it has paid in full or
delivered to the Trustee for cancellation.
SECTION 2.10. CUSIP Numbers.
The Issuer in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders. 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 redemption or exchange and
that reliance may be placed only on the other identification numbers, if any,
printed on the Notes.
SECTION 2.11. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it
shall pay or cause to be paid, or shall deposit or cause to be deposited with
the Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent Special
Record Date. The Issuer shall fix or cause to be fixed any such Special Record
Date and payment date to the reasonable satisfaction of the Trustee and shall,
at least 15 days before the subsequent Special Record Date, mail to each Holder
and the Trustee a notice that states the Special Record Date, the payment date
and the amount of defaulted interest to be paid. A "Special Record Date", as
used in this Section 2.11 with respect to the payment of any defaulted interest,
shall mean the fifteenth day next preceding the date fixed by the Issuer for the
payment of defaulted interest, whether or not such day is a Business Day.
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SECTION 2.12. Noteholder 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
Holders. If the Trustee is not the Registrar, the Credit Parties shall furnish
to the Trustee, in writing at least five 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 Holders.
SECTION 2.13. Communication By Holders with Other Holders.
Pursuant to Section 312(b) of the TIA, Holders may communicate with
other Holders with respect to their rights under this Indenture or the Notes.
The Issuer, the Trustee, the Registrar and the Paying Agent shall be entitled to
the protections of Section 312(c) of the TIA.
ARTICLE III REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof,
or is required to redeem Notes pursuant to Section 3.08 hereof, it shall furnish
to the Trustee, at least 30 days but not more than 60 days before the redemption
date, an Officers' Certificate setting forth (i) the provision of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall redeem or purchase Notes, or
portions thereof, in such amounts as shall be necessary so that such redemption
or purchase is applied to the principal amount of the Notes on a pro rata basis.
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.
At least 30 days but not more than 60 days before a redemption date,
the Issuer 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.
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The notice shall identify the Notes 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 Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date; and
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense, provided that the Issuer
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 10 a.m. on the applicable redemption date, the Issuer shall,
to the extent sufficient funds are not already on deposit with the Trustee in
the Specified Subsidiary Asset Sale Proceeds Account, deposit with the Trustee
or with the Paying Agent U.S. Dollars 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 Issuer any U.S. Dollars deposited
with the Trustee or the Paying Agent by the Issuer in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes to
be redeemed.
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If the Issuer 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 an interest 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 Issuer 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 Issuer shall
issue and, upon the Issuer's written request, the Trustee shall authenticate for
the Holder at the expense of the Issuer a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
The Issuer may at any time, and from time to time, at its option,
redeem the Notes in whole or in part, in a minimum aggregate redemption amount
of $5,000,000, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount of thereof, plus accrued
and unpaid interest thereon, if any, to the applicable redemption date (subject
to the right of Holders of record on the relevant interest Record Date to
receive interest due on the relevant Interest Payment Date). Any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
SECTION 3.08. Mandatory Redemption.
(a) Specified Subsidiary Asset Sales. Except as provided in Section
3.08(b) hereof, in the event of one or more Specified Subsidiary Asset Sales,
the Company shall, upon receipt by the Company or the applicable Subsidiary of
the Net Cash Proceeds of such Specified Subsidiary Asset Sale, deposit, or cause
to be deposited, and thereafter retain, the entire amount of such Net Cash
Proceeds into the Specified Subsidiary Asset Sale Proceeds Account. Once the
aggregate amount of such Net Cash Proceeds shall exceed $5,000,000 or more then,
upon not less than 30 nor more than 60 days' notice (but in no event more than
70 days after such Specified Subsidiary Asset Sale), the Company shall cause the
Issuer to use the Net Cash Proceeds then held in the Specified Subsidiary Asset
Sale Proceeds Account to redeem the maximum principal amount of the Notes that
may be redeemed out of such Net Cash Proceeds at a redemption price of 100% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
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). Amounts so deposited into the Specified Subsidiary Asset Sale
Proceeds
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Account may not be withdrawn except to effect such redemption as provided herein
unless all Notes have been redeemed.
(b) Non-Cash Consideration. To the extent that the Company or any of
its Restricted Subsidiaries receive consideration as a result of or in
connection with a Specified Subsidiary Asset Sale that are not Net Cash Proceeds
thereof, such consideration shall become part of the Collateral and, with
respect to such consideration, the Issuer shall not be required to comply with
Section 3.08(a) hereof.
(c) General Redemption Provisions Applicable. Any redemption pursuant
to this Section 3.08 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.
SECTION 3.09. Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10(a) hereof, the Issuer
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 Issuer 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 Issuer 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(a) hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
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(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Issuer 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 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 Issuer, a Depositary,
if appointed by the Issuer, or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their election if the
Issuer, 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
principal amount of the Note the Holder delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Issuer shall select the principal of
the Notes to be purchased on a pro rata basis; and
(h) 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 10:00 a.m. on the Purchase Date, the Issuer 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 Issuer in
accordance with the terms of this Section 3.09. The Issuer, 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 Issuer for purchase, and the Issuer shall promptly issue a new
Note, and the Trustee, upon written request from the Issuer 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 Issuer to the Holder thereof. The Issuer
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
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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 IV Covenants
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of and
interest, if any, on the Notes on the dates and in the manner provided in the
Notes. Principal and interest, if any, shall be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary or Affiliate
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Issuer in immediately available funds and designated for and sufficient to
pay all principal and interest, if any, then due.
The Issuer 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.
The Credit Parties may terminate their obligations under this
Indenture, the Notes and the Security Documents if (A) all Notes previously
authenticated and delivered (other than destroyed, lost or stolen Notes that
have been replaced pursuant to Section 2.06 or Notes for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Issuer, as provided in Section 2.04) have been delivered to the Trustee for
cancellation and the Credit Parties have irrevocably paid all amounts payable by
them hereunder and (B) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, at the cost and expense of the Company,
in each case stating that all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.02. Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
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The Issuer may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations, provided
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Issuer hereby designates the corporate trust office of the
Trustee's agent ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, TADS Department, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as one such office or agency of the
Issuer.
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 (a) 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 (b) 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. Furthermore, for so long
as any Notes remain outstanding (and regardless of the immediately preceding
sentence), the Company shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule l44(c)(2) under the Securities Act. Notwithstanding
anything to the contrary above in this Section 4.03, the Company shall not be
required by the terms of this Section 4.03 to include in any filing, or to
furnish any information with respect to, financial information of the Company
for its fiscal years ended December 31, 2001 or December 31, 2000, or any
interim period in such years (including any Management's Discussion and Analysis
of Financial Condition and Results of Operations with respect to any such
periods), unless and until such information becomes available (whether or not
pursuant to any filing with the SEC).
SECTION 4.04. Compliance Certificate, Etc.
(a) Compliance Certificate. The Issuer, on behalf of itself and each
Guarantor, shall deliver to the Trustee (to the extent that such Guarantor is so
required under the TIA), within 90 days after the end of each fiscal year ending
after the date of this Indenture, 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 Credit Parties have kept, observed, performed
and fulfilled their obligations under this Indenture and the Security Documents,
and further stating, as to each such Officer signing such
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certificate, that to the best of his or her knowledge the Credit Parties have
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and the Security Documents and are not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture and the Security Documents (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 Credit Parties are taking or propose
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 are prohibited or
if such event has occurred, a description of the event and what action the
Credit Parties are taking or propose 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) Reports from Independent Accountants. 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 in the United States) 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
Section 3.08, 3.09, Article IV, V or VI 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) Notice of Defaults. In the event that any Credit Party becomes
aware of any events which would constitute a Default or Event of Default, the
Company within five Business Days after it becomes aware thereof, shall give to
the Trustee written notice of such events, their status and the nature of any
actions taken or proposed to be taken by the Company in respect of such events.
(d) Certain Inspection and Information Rights. So long as any Holder
that is a Bank and that is party to the Credit Agreement on the Issue Date shall
continue to hold any of the Notes distributed to it on the Issue Date (any such
Holder being herein called a "Designated Holder"), the Company will, in order to
permit such Designated Holder to continue to hold the Notes issued to it in
accordance with safe and sound banking practices, following a written request
therefor delivered to the Company 30 days prior to the date requested for
review, furnish to such Designated Holder, in addition to the financial
information, reports, certificates and other information required to be
delivered from time to time pursuant to Sections 4.03 hereof, such other
information regarding the operations, business affairs and financial condition
of the Company and its Subsidiaries as such Designated Holder may reasonably
request. No Holders other than Designated Holders (including any transferee of
the Notes from any Designated Holder) shall be entitled to the benefits of this
Section 4.04(d).
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(e) TIA Reports. Notwithstanding anything in Section 4.03 and 4.04 of
this Indenture, the Credit Parties shall comply with the requirements of Section
314(a) of the TIA.
SECTION 4.05. Taxes.
Without prejudice to the Security Documents, the Company shall pay or
discharge, and shall cause each of its Restricted Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (a) all material taxes, assessments and governmental charges levied
or imposed upon (i) the Company or any such Subsidiary, (ii) the income or
profits of the Company or any such Subsidiary which is a corporation or (iii)
the Property of the Company or any such Subsidiary and (b) all material lawful
claims for labor, materials and supplies that, if unpaid, would, by operation of
law, become a Lien upon the Property of the Company or any such Subsidiary,
provided that the Company shall not be required to pay or discharge, or cause to
be paid or discharged, any such tax, assessment, charge or claim (1) the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves, if any, in conformity
with GAAP, have been established or (2) which does not exceed $500,000.
SECTION 4.06. Stay, Extension and Usury Laws.
Each of the Issuer and the Guarantors agrees (to the extent that it
may lawfully do so) that it shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Issuer or any Guarantor from paying all or any portion of the principal of or
interest on the Notes as contemplated herein or any payments required under any
Security Documents, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each of the Issuer and the Guarantors hereby
expressly waives all benefit or advantage of any such law and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.07. Restricted Payments.
The Company will not, and will 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, including any payment in connection
with any merger or consolidation involving the Company or any of its Restricted
Subsidiaries (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 (including in connection with any merger or consolidation involving
the Company) any Equity Interests of the Company or any direct or indirect
parent of the Company (other than any such Equity
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Interests owned by the Company or any Wholly Owned Restricted 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 Indebtedness that is
subordinated to the Notes or the Note Guarantees, 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 the preceding clauses (i) through
(iv) being collectively referred to as "Restricted Payments"); provided, that
the Company and its Restricted Subsidiaries may make Restricted Investments if,
at the time of and after giving effect to such Restricted Investment:
(a) 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 Investment and
after giving pro forma effect thereto have been permitted to Incur at least
$1.00 of additional Indebtedness pursuant to the first paragraph of Section
4.09 hereof; and
(c) such Restricted Investment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted
by clauses (i) and (ii) of the next succeeding paragraph, but including any
Restricted Payments permitted by clauses (iii) (to the extent paid to a
Person other than the Company or a Restricted Subsidiary thereof), (iv),
(v), (vi) and (vii) of such paragraph), is less than the sum, without
duplication, of
(i) if, on the date of such proposed Restricted Investment, at
least one complete fiscal quarter has elapsed subsequent to the Issue
Date, and for which financial statements of the Company are available,
the remainder of (A) 50% of the cumulative Consolidated Cash Flow of
the Company (or, in the case Consolidated Cash Flow of the Company
shall be negative, less 100% of such deficit) for the period (taken as
one accounting period) beginning on the first day of the fiscal
quarter of the Company following the Issue Date and ending on the last
day of the last full fiscal quarter immediately preceding the date of
such Restricted Payment minus (B) the product of 2.00 times the
cumulative Consolidated Interest Expense of the Company from the first
day of the fiscal quarter of the Company following the Issue Date
through the last day of the last full fiscal quarter immediately
preceding the date of such Restricted Payment, plus
(ii) 100% of the aggregate net cash proceeds received by the
Company since the Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock and other than Equity Interests sold to
a Subsidiary of the Company), plus the net amount of cash received by
the Company or any Restricted Subsidiary thereof upon such conversion
or
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exchange (in each case of this clause (ii) other than pursuant to an
issue or sale to a Subsidiary of the Company), plus
(iii) the aggregate amount of (A) dividends, distributions,
interest payments, return of capital, repayments of Investments or
other transfers of cash to the Company or any Restricted Subsidiary
thereof from an Unrestricted Subsidiary, (B) cash proceeds realized by
the Company or any Restricted Subsidiary thereof upon the sale of such
Restricted Investment in an Unrestricted Subsidiary to a Person other
than the Company or a Restricted Subsidiary of the Company or (C) the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary
in compliance with Section 4.18 hereof, not to exceed in the case of
any of the immediately preceding clauses (A), (B) or (C) the aggregate
amount of the Restricted Investments made by the Company or any
Restricted Subsidiary thereof in the applicable Unrestricted
Subsidiary after the Issue Date, plus
(iv) to the extent that any Restricted Investment that was made
after the date of this Indenture is sold for cash or otherwise
liquidated or repaid for cash, the amount of proceeds (net of any cost
of disposition) from such sale or liquidation received by the Company
or a Restricted Subsidiary of the Company, not to exceed the amount of
such Restricted Investment originally made.
The foregoing provisions will not prohibit (i) the redemption,
repurchase, retirement, defeasance or other acquisition of any subordinated
Indebtedness of the Issuer or any Guarantor or of Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company) of, other
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
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (ii) the defeasance,
redemption, retirement, repurchase or other acquisition of subordinated
Indebtedness of the Issuer or any Guarantor with the net cash proceeds from an
Incurrence of Permitted Refinancing Indebtedness; (iii) the payment of any
dividend in cash by a Restricted Subsidiary of the Company to the holders of its
Equity Interests on a pro rata basis; (iv) 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 $1,000,000 in any twelve-month period (with unused amounts being carried
over to succeeding twelve-month periods, subject to a maximum of $2,500,000 in
any twelve-month period); (v) required dividend payments on the New Preferred
Shares at the rate applicable to such shares on the Issue Date; (vi) Restricted
Payments of the type described in clause (iii) of the first clause of the first
paragraph of this Section 4.07 (so long as such payments are made to a Person
that is not an Affiliate of the Company), or
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clause (iv) of the first clause of said paragraph, in an aggregate amount not to
exceed $5,000,000; and (vii) so long as no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof, other
Restricted Investments in cash or by extension of credit not to exceed, in the
aggregate, $75,000,000; provided that no more than $25,000,000 (of such
$75,000,000) may constitute Restricted Investments in Persons other than
Qualified Restricted Subsidiaries or Restricted Subsidiaries that are Credit
Parties.
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 of the Company (such determination to be based upon an opinion or
appraisal issued by an Independent accounting, appraisal or investment banking
firm of national standing if such fair market value exceeds $5,000,000).
For purposes hereof, any Investments made by the Company or any of its
Restricted Subsidiaries subsequent to September 30, 2002 shall be deemed to have
been made on the Issue Date (and, to the extent that such Investments would not
have been permitted to be made at such time under this Section 4.07, the Company
shall be deemed to be in breach of this Section 4.07).
SECTION 4.08. Certain Dividend and Other Payment Restrictions.
The Company will not, and will 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 of the Company to (i) (x) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (A) on its
Capital Stock or (B) with respect to any other interest or participation in, or
measured by, its profits, or (y) 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 Property to the
Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the provisions of the preceding
paragraph will not apply to encumbrances or restrictions existing under or by
reason of:
(a) Existing Indebtedness and other agreements as in effect on the
Issue Date (it being understood that any extension, renewal, refinancing or
modification thereof after the Issue Date shall be required to comply with
the provisions of this Section 4.08);
(b) agreements governing the Working Capital Facility or the security
documents related thereto, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
of
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those agreements, provided that such encumbrances or restrictions in the
Working Capital Facility and such security documents and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings do not affect any Credit Party's ability to
make any anticipated principal or interest payments on the Notes or the
ability of any Credit Party to make payments to effect any redemption or
repurchase of the Notes that may be required under this Indenture or the
Notes,
(c) this Indenture, the Notes, the Note Guarantees and the Security
Documents,
(d) applicable law,
(e) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices,
(f) any agreement for the sale or other disposition of a Restricted
Subsidiary of the Company that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition,
(g) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, and no less favorable to the Holders,
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced,
(h) Liens securing Purchase Money Indebtedness referred to in clause
(k) of the definition of Permitted Liens that limit the right of the
Company or any of its Restricted Subsidiaries to dispose of the Property
subject to such Liens,
(i) provisions with respect to the disposition or distribution of
Property in joint venture agreements and other similar agreements entered
into in the ordinary course of business;
(i) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
and
(j) encumbrances or restrictions on a Receivables Entity in respect of
a Qualified Receivables Transaction, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that encumbrances or restrictions, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings (i) do not affect the Company's or
any other Credit Party's ability to make any anticipated principal or
interest payments on the Notes or the ability of any Credit Party to make
payments to effect any
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redemption or repurchase of the Notes that may be required under this
Indenture or the Notes and (ii) are applicable only to a Receivables
Entity.
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly Incur any Indebtedness (including
Acquired Debt) and the Company will not issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any shares of Preferred
Stock, provided that the Company may Incur Indebtedness, and any other Credit
Party (other than GCUK, Global Marine or any of their Subsidiaries) may incur
Indebtedness, at any time after the date upon which at least one complete fiscal
quarter has elapsed subsequent to the Issue Date for which financial statements
of the Company are available if:
(i) the Company's Consolidated Leverage Ratio is less than 3.00 to 1;
and
(ii) any such Indebtedness is (A) expressly subordinated in right of
payment to the Company's or such other Credit Party's, as applicable,
obligations under this Indenture, (B) does not require or permit payment of
principal thereon prior to the date that is 91 days after the Stated
Maturity of the principal amount of the Notes, (C) may not at the option of
the holder thereof be required to be repurchased, redeemed, retired,
repaid, prepaid or called prior to the date 91 days after the date on which
the Notes mature and (D) is not convertible or exchangeable into any
security or instrument that does not comply with the restrictions in the
foregoing sub-clauses (A), (B) and (C); provided that this clause (ii)
shall not prohibit the Company or any other Credit Party from Incurring
Indebtedness with change of control repurchase, redemption or prepayment
provisions similar to those contained in Section 4.15 hereof with respect
to any Indebtedness otherwise permitted hereunder (it being understood that
no subordinated Indebtedness may be repurchased, redeemed or prepaid prior
to the Change of Control Payment Date referred to in paragraph (a) of
Section 4.15 hereof, except as otherwise permitted by this Indenture).
Notwithstanding the foregoing, the provisions of the preceding
paragraph will not apply to the Incurrence of any of the following items of
Indebtedness:
(a) the Incurrence by the Issuer or any Guarantor (other than GCUK,
Global Marine or any of their Subsidiaries) of Indebtedness under the
Working Capital Facility in an aggregate principal amount at any one time
outstanding under this clause (a) (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder) not to exceed at any
time (i) the Working Capital Facility Limit then in effect minus (ii) the
aggregate outstanding amount of Indebtedness outstanding in connection with
Qualified Receivables Transactions;
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(b) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in connection with a Qualified Receivables
Transaction (including any such Incurrence through the sale by the Company
or any of its Restricted Subsidiaries of Receivables) not to exceed at any
time (i) the Working Capital Facility Limit then in effect minus (ii) the
aggregate amount of Indebtedness outstanding under the Working Capital
Facility;
(c) the Incurrence by the Issuer and the Guarantors of Indebtedness
represented by the Notes to be issued on the date of this Indenture and the
Note Guarantees in connection therewith;
(d) Existing Indebtedness;
(e) the Incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries, or the issuance of Preferred Stock by
any Restricted Subsidiary of the Company to the Company or any Restricted
Subsidiary of the Company, provided that:
(i) if the Issuer or any Guarantor is obligated in respect of
such Indebtedness, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to
the Notes, in the case of the Issuer, or the Note Guarantees, in the
case of a Guarantor, in each case upon terms in substantially the form
of Exhibit E-1 hereto, and shall not be secured by any Lien on any
Property of the Company or any of its Subsidiaries; and
(ii) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness or Preferred Stock being held by a
Person other than a Credit Party, and any sale or other transfer of
any such Indebtedness or Preferred Stock to a Person that is not a
Credit Party, will be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(e);
(f) the Incurrence by the Company or any of its Restricted
Subsidiaries of Purchase Money Indebtedness, in an aggregate principal
amount at any time outstanding, including all Permitted Refinancing
Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this clause (f), not exceeding $50,000,000 at any time
outstanding;
(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 that is permitted by the terms of
this Indenture to be
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outstanding, or for the purpose of limiting currency exchange rate risks
directly related to transactions entered into by the Company or such
Restricted Subsidiary in the ordinary course of business and not for
speculative purposes;
(h) the Incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness not otherwise permitted to be
Incurred pursuant to this Section 4.09 in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace
any Indebtedness Incurred pursuant to this clause (h), not exceeding
$10,000,000;
(i) the Incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this Indenture
to be Incurred pursuant to the first paragraph of this Section 4.09 or
clause (f) or (h) of this paragraph;
(j) the Incurrence by the Company of additional Indebtedness in
respect of loans by shareholders of the Company to the Company; provided
such loans (i) do not bear interest or fees (including up-front or similar
fees) payable in cash at a rate per annum greater than 11%, (ii) are
unsecured and contractually subordinated in right of payment to the Notes
and the Note Guarantees upon terms in substantially the form of Exhibit E-1
hereto, (iii) do not have any required payments, prepayments or redemptions
of principal prior to the date 91 days after the date on which the Notes
mature, (iv) may not at the option of the holder thereof be required to be
repurchased, redeemed, retired, repaid, prepaid or called prior to the date
91 days after the date on which the Notes mature and (v) are not
convertible or exchangeable into any security or instrument that does not
comply with the restrictions in the foregoing sub-clauses (i), (ii) and
(iii); and
(k) the Guarantee by the Company or any Restricted Subsidiary of
Indebtedness of the Company or any Restricted Subsidiary of the Company
that was permitted to be Incurred by another provisions of this Section
4.09.
Anything herein to the contrary notwithstanding, (i) the Company will
not, and will not permit any Credit Party to, Incur any Indebtedness (including
any Acquired Debt and any Guarantee referred to in clause (k) of the second
paragraph of this Section 4.09, but excluding the Working Capital Facility,
Purchase Money Indebtedness, Hedging Obligations and Existing Indebtedness, and
any Indebtedness referred to in clauses (e) or (j) of the second paragraph of
this Section 4.09) unless such Indebtedness is contractually subordinated in
right of payment to the Notes and the Note Guarantees upon terms in
substantially the form of Exhibit E-2 hereto, (ii) in no event will GCUK, Global
Marine or any of their respective Subsidiaries be obligated, directly or
indirectly, in respect of any Indebtedness (other than Existing Indebtedness and
Purchase Money Indebtedness of GCUK and its Subsidiaries, or Global Marine and
its Subsidiaries,
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respectively, arising out of the purchase, construction or improvement of
Property of GCUK and its Subsidiaries, or Global Marine and its Subsidiaries, as
applicable) and (iii) any Indebtedness of the Issuer or any Guarantor of the
type described in clause (e) or (j) of the second paragraph of this Section 4.09
and outstanding on the Issue Date shall be required to be subordinated to the
obligations of the Issuer and the Guarantors in respect of the Notes and the
Note Guarantees as required under clause (e) or (j), as the case may be, of said
second paragraph.
For purposes hereof, any Indebtedness Incurred by the Company or any
of its Restricted Subsidiaries subsequent to September 30, 2002 (other than the
Capital Lease Obligations referred to in clause (b) of the definition of
"Existing Indebtedness" in Section 1.01 hereof) shall be deemed to have been
Incurred on the Issue Date (and, to the extent that such Indebtedness would not
have been permitted to be Incurred at such time under this Section 4.09, the
Company shall be deemed to be in breach of this Section 4.09).
SECTION 4.10. Asset Sales and Specified Subsidiary Asset Sales
and Casualty Events.
(a) Asset Sales. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company
(or such Restricted Subsidiary, as the case may be) receives consideration at
the time of such Asset Sale (if other than a Casualty Event) at least equal to
the fair market value (as determined in good faith by the Board of Directors of
the Company (including as to the value of all consideration other than Qualified
Cash Equivalents) and set forth in an Officers' Certificate delivered to the
Trustee) of the Property or Equity Interests that are the subject of such Asset
Sale, (ii) at least 80% of the consideration therefor (if other than a Casualty
Event) is in the form of Qualified Cash Equivalents, (iii) the Net Cash Proceeds
received by the Company (or such Restricted Subsidiary, as the case may be) from
such Asset Sale shall be remitted to the Trustee for deposit into the Asset Sale
Proceeds Account free of any Lien (other than the Lien of this Indenture, the
Security Documents and the Working Capital Facility), and the Company (or such
Restricted Subsidiary, as the case may be) shall take such action as shall be
necessary under 6.03 hereof in order to maintain the Lien of the Trustee on any
other consideration received in such Asset Sale and (iv) 100% of the Net Cash
Proceeds from such Asset Sale shall be retained in the Asset Sale Proceeds
Account and shall be available (x) in the case of Net Cash Proceeds of a
Casualty Event, to be applied to the repair, rebuilding or replacement of the
Property subject to such Casualty Event and (y) in the case of any other Net
Cash Proceeds of such Asset Sale, to the reinvestment into Property that is used
or useful in a Permitted Business, provided that to the extent the Net Cash
Proceeds referred to in this clause (iv) have not been so applied to such
repair, rebuilding, replacement or reinvestment within 365 days following the
receipt of such Net Cash Proceeds (or within such shorter period as shall be
specified by the Company), such Net Cash Proceeds shall be applied to the making
of an Asset Sale Offer as provided in the next-following paragraph. The
aggregate amount of the Net Cash Proceeds referred to in the preceding clause
(iv) remaining at the end of such period after the application of such
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Net Cash Proceeds as described in such clause (iv) to the repair, rebuilding,
replacement or reinvestment referred to therein, shall constitute "Excess
Proceeds."
When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000 (taking into account income earned on such Excess Proceeds), the
Issuer will be required to make an offer to all Holders (an "Asset Sale Offer")
to purchase the maximum principal amount of Notes 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, plus accrued and unpaid interest thereon, if any,
to the date of purchase, in accordance with the procedures set forth in Article
III hereof, it being understood that, to the extent any such Excess Proceeds
held in the Asset Sale Proceeds Account are required to be applied to the
payment of the Working Capital Facility, then only the portion of the Excess
Proceeds remaining after such payment shall be applied to the making of an Asset
Sale Offer. To the extent that any Excess Proceeds remain after consummation of
an Asset Sale Offer, the Issuer may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes tendered into such Asset Sale Offer surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. 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.
(b) Specified Subsidiary Asset Sales and Casualty Events. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate any Specified Subsidiary Asset Sale unless (i) the Company (or such
Restricted Subsidiary, as the case may be) shall ensure that the consideration
received at the time of such Specified Subsidiary Asset Sale is at least equal
to the fair market value (as determined in good faith by the Board of Directors
of the Company (including as to the value of all consideration other than
Qualified Cash Equivalents) and set forth in an Officers' Certificate delivered
to the Trustee) of the Property or Equity Interests issued or sold or otherwise
disposed of, (ii) at least 80% of the consideration therefor shall be in the
form of Qualified Cash Equivalents (provided that the foregoing requirement that
80% of the consideration be in the form of Qualified Cash Equivalents shall not
apply to a Qualified GCUK Asset Sale), (iii) the Net Cash Proceeds received by
the Company (or such Restricted Subsidiary, as the case may be) from such
Specified Subsidiary Asset Sale shall be remitted to the Trustee for deposit
into the Specified Subsidiary Asset Sale Proceeds Account free of any Lien
(other than the Lien of this Indenture or the Security Documents), and the
Company (or such Restricted Subsidiary, as the case may be) shall take such
action as shall be necessary under 6.03 hereof in order to maintain the Lien of
the Trustee on any other consideration received in such Specified Subsidiary
Asset Sale, and (iv) such Net Cash Proceeds shall be applied in accordance with
Section 3.08 hereof.
Upon any Specified Subsidiary Casualty Event, (i) the Net Cash
Proceeds received by the Company (or any of its Restricted Subsidiaries) from
such Specified Subsidiary Casualty Event shall be remitted to the Trustee for
deposit into the Specified Subsidiary Casualty Event Proceeds Account free of
any Lien (other than the Lien of this Indenture or the Security Documents) and
(ii) such Net Cash Proceeds shall be retained in
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the Specified Subsidiary Casualty Event Proceeds Account and applied to the
repair, rebuilding or replacement of the Property subject to such Specified
Subsidiary Casualty Event, provided that if such Net Cash Proceeds shall not
have been so applied within 360 days following the receipt of such Net Cash
Proceeds (or within such shorter period as shall be specified by the Company),
the balance of such Net Cash Proceeds shall be transferred to the Specified
Subsidiary Asset Sale Proceeds Account and shall be applied in accordance with
the provisions of the preceding paragraph as if such Net Cash Proceeds
constituted proceeds of a Specified Subsidiary Asset Sale.
(c) Determination of Cash Proceeds. The amount of (i) any liabilities
of the Company or any Restricted Subsidiary of the Company (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or Note Guarantees), in each case as shown on the Company's (or such
Restricted Subsidiary's, as the case may be) most recent balance sheet, that are
assumed by the transferee of any such Property pursuant to an agreement that
releases the Company and any Restricted Subsidiary, as applicable, from all
liability in respect thereof, (ii) Indebtedness of any Restricted Subsidiary of
the Company that is no longer a Restricted Subsidiary of the Company as a result
of an Asset Sale or Specified Subsidiary Asset Sale, to the extent that the
Company and each other Restricted Subsidiary of the Company are released from
any Guarantee of payment of the principal amount of such Indebtedness in
connection with such Asset Sale or Specified Subsidiary Asset Sale and such
Indebtedness is Non-Recourse Debt and (iii) 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 Qualified Cash Equivalents (to the extent of the Qualified
Cash Equivalents received), will be deemed to be Qualified Cash Equivalents for
purposes of determining the percentage of the consideration received in
connection with any Asset Sale or Specified Subsidiary Asset Sale that consists
of Qualified Cash Equivalents.
(d) Compliance with Applicable Law. To the extent that the provisions
of any securities laws or regulations conflict with the Asset Sale, Specified
Subsidiary Asset Sale or Specified Subsidiary Casualty Event 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, Specified Subsidiary Asset Sale or Specified Subsidiary Casualty
Event provisions of this Indenture, as the case may be, by virtue thereof.
SECTION 4.11. Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its Property to, or purchase any Property 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 of the Company
or its Restricted Subsidiaries (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms
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that are not materially less favorable to the Company or the relevant Restricted
Subsidiary thereof than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person and (b) the Company delivers to the Trustee (i) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $2,000,000, a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate certifying that
such Affiliate Transaction complies with the preceding clause (a) and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of such Board of Directors and (ii) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving consideration
in excess of $10,000,000, an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view from an Independent
accounting, appraisal or investment banking firm of recognized national standing
in the United States.
Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions:
(a) the receipt by any Affiliate who is an individual serving as a
director, officer or employee of the Company or any of its Subsidiaries of
reasonable compensation for his or her services in such capacity;
(b) transactions between or among the Company and its Restricted
Subsidiaries;
(c) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company;
(d) the execution, delivery or performance in the ordinary course of
business of any employment contract, collective bargaining agreement,
benefit plan, program or arrangement, related trust agreement or any other
similar arrangement with or for any employee, officer or director,
including vacation, health, insurance, deferred compensation, stock option,
retirement, savings or other similar plans, provided that the aggregate
amount paid under this clause (d) during any year to all employees,
officers and directors constituting Affiliates shall not exceed $2,500,000;
(e) the making of Management Advances, and payments in respect
thereof;
(f) Affiliate Transactions in existence on the Issue Date, including
any amendments thereto (provided that the terms of such amendments are not
materially less favorable to the Company or the relevant Restricted
Subsidiary than the terms of such agreement prior to such amendment);
(g) transactions between the Company and shareholders of the Company
permitted under Section 4.09(j) hereof;
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(h) transactions with respect to joint sales and marketing pursuant
to an agreement or agreements between the Company or any Restricted
Subsidiary thereof and any Unrestricted Subsidiary or other Affiliate
(provided that in the case of this clause (h), 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, are
either (i) 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 (ii) involve the provision by the Company or
a Restricted Subsidiary thereof to an Unrestricted Subsidiary of sales and
marketing services, operations, administration 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 of
the Company and set forth in an Officers' Certificate delivered to the
Trustee) above its expenses of providing such services;
(i) any transaction entered into in the ordinary course of business
between the Company or any Restricted Subsidiary thereof and any
Unrestricted Subsidiary (provided that in the case of this clause (i), 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);
(j) Restricted Payments that are permitted by Section 4.07 hereof;
and
(k) transactions with a Receivables Entity in connection with a
Qualified Receivables Transaction.
SECTION 4.12. Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, 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, now owned or hereafter acquired.
SECTION 4.13. Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction, provided that
any Credit Party may enter into a sale and leaseback transaction if (a) such
Credit Party could have (i) Incurred Indebtedness under Section 4.09 hereof in
an amount equal to the Attributable Debt relating to such sale and leaseback
transaction and (ii) incurred a Lien to secure such Indebtedness pursuant to
Section 4.12 hereof (taking into account the definition of "Permitted Liens" in
Section 1.01 hereof), (b) the gross cash proceeds of such sale and leaseback
transaction are at least equal to the fair market value (as
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determined in good faith by the Board of Directors of the Company and set forth
in an Officers' Certificate delivered to the Trustee) of the Property that is
the subject of such sale and leaseback transaction and (c) the transfer of
Property in such sale and leaseback transaction is treated as an Asset Sale or
Specified Subsidiary Asset Sale, as applicable, and the Company applies the
proceeds of such transaction in compliance with, Section 4.10 hereof and Section
3.08 or 3.09 hereof, as the case may be.
SECTION 4.14. Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (a) 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 (b) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries, provided 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 of the Company 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.
SECTION 4.15. Offer to Repurchase Upon Change of
Control.
(a) Change of Control Offer. Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require the Issuer to
purchase all or any part of such Holder's Notes pursuant to the offer described
below (the "Change of Control Offer") at a purchase price in cash (the "Change
of Control Payment") equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest, if any, 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 that the
Issuer 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
described in Section 3.07 hereof. Within 30 days following any Change of
Control, the Issuer will mail a notice to each Holder 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 Issuer will comply with the
requirements of Rule 14e-l 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 4.15, the Issuer 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.
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(b) Change of Control Payment Date. On the Change of Control Payment
Date, the Issuer will, to the extent lawful, (l) 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
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 Issuer. The Paying Agent will promptly mail or deliver to
each Holder of Notes so tendered the Change of Control Payment for such Notes,
and 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. The Issuer 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) Offers by Third Parties. Notwithstanding anything to the contrary
in this Section 4.15, the Issuer 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 4.15, and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
(d) Other Change of Control Offers. Nothing herein shall be deemed to
prohibit the Company or any of its Subsidiaries from entering into similar
change of control repurchase, redemption or prepayment provisions with respect
to any other Indebtedness permitted hereunder (it being understood that no
subordinated Indebtedness may be repurchased, redeemed or prepaid prior to the
Change of Control Payment Date referred to in paragraph (a) of this Section
4.15, except as otherwise permitted by this Indenture).
SECTION 4.16. Business Activities; Holding Company
Status.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than a Permitted Business.
The Company will not engage in any business or other activity other
than the business of holding Equity Interests in its Subsidiaries and activities
reasonably related thereto, including (a) the Incurrence of Indebtedness
permitted to be Incurred hereunder and (b) the payment of (i) directors' fees,
and fees, costs and expenses in respect of professional and related services
which may be rendered on behalf of the Company and its Subsidiaries from time to
time, including the fees and expenses of accountants, lawyers, investment
bankers and other consultants retained in connection with matters affecting the
Company and its Subsidiaries collectively, (ii) premiums, fees and expenses in
connection with insurance policies and employee benefit programs (including
workmen's compensation) maintained on behalf of the Company or any of its
Subsidiaries and (iii) fees, costs and expenses incurred in connection with
acquisitions
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and financings, including banking and underwriting fees (including underwriters
discounts).
SECTION 4.17. Issuances and Sales of Certain Equity Interests.
The Company (a) will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly-Owned Restricted Subsidiary of the Company to any
Person (other than
The Company or a Wholly Owned Restricted Subsidiary of the Company),
unless (i) such transfer, conveyance, sale, lease or other disposition is of all
the Equity Interests in such Wholly Owned Restricted Subsidiary and (ii) the Net
Cash Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Sections 3.08 or 3.09 hereof, as the case may be,
and 4.10 hereof, as applicable, and (b) will not permit any Wholly Owned
Restricted Subsidiary of the Company to issue any of its Equity Interests (other
than, if necessary, shares of its Capital Stock constituting directors'
qualifying shares) to any Person other than to the Company or a Wholly Owned
Restricted Subsidiary of the Company. Notwithstanding the foregoing, the Company
will not, and will not permit any of its Subsidiaries to, sell, transfer or
otherwise dispose of any Equity Interest in the Issuer if, after giving effect
thereto, the Issuer shall cease to be a Wholly Owned Restricted Subsidiary of
the Company.
SECTION 4.18. Designation and Revocation of Designation of
Unrestricted Subsidiaries.
The Company may designate a Restricted Subsidiary that is a
Receivables Entity to be an Unrestricted Subsidiary if (1) such designation is
in compliance with the provisions of the definition of "Unrestricted
Subsidiary," and (2) such designation is evidenced to the Trustee by delivering
to the Trustee of a copy of a Board Resolution of the Company giving effect to
such designation and an Officers' Certificate certifying that (a) such
designation complies with the requirements of the definition of Unrestricted
Subsidiary and (b) the Company was permitted to make a Permitted Investment or
Restricted Investment at the time of such designation in an amount equal to the
Company's interest in the fair market value of such Subsidiary on such date.
The Company may revoke the designation of a Subsidiary as an
Unrestricted Subsidiary by delivering to the Trustee a Board Resolution of the
Company, provided that the Company shall not revoke such designation unless (x)
no Default or Event of Default shall have occurred and be continuing at the time
of or after giving effect to such revocation and (y) all Liens and Indebtedness
of such Unrestricted Subsidiary outstanding immediately following such
revocation would, if Incurred by a Restricted Subsidiary at such time, have been
permitted to be Incurred at such time for all purposes under this Indenture. To
be effective, any such revocation delivered to the Trustee shall be accompanied
by an Officers' Certificate to the effect that the requirements of this Section
4.18 shall have been satisfied with respect to such revocation.
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Notwithstanding anything to the contrary in this Section 4.18,
immediately following the sale or merger of all or substantially all of the
Property of, or Equity Interests in, AGC and its Subsidiaries to or into any
Person, to the extent that AGC or any of its Subsidiaries remain Subsidiaries of
the Company following such sale or merger, the designation of AGC and its
Subsidiaries as Unrestricted Subsidiaries under this Indenture shall be deemed
immediately revoked, with the effect that all Liens and Indebtedness of AGC and
its Subsidiaries outstanding at such time shall be deemed to have been Incurred
by a Restricted Subsidiary at such time, and AGC and its Subsidiaries shall from
that time be Restricted Subsidiaries under this Indenture.
SECTION 4.19. Guarantee Supplements.
If at any time after the date hereof the Company shall form or acquire
any new Subsidiary that shall constitute a Material Subsidiary (other than a
Receivables Entity), or if after the Issue Date any Subsidiary not a Material
Subsidiary (whether or not in existence on the Issue Date) shall become a
Material Subsidiary (other than a Receivables Entity), the Company will within
10 days thereof cause such new or existing Subsidiary to execute and deliver to
the Trustee a Guarantee Supplement in substantially the form of Exhibit B
hereto, and thereby to become a "Guarantor" and a "Credit Party" hereunder and
under the Security Agreement, and will (i) deliver such Opinions of Counsel in
New York and applicable foreign jurisdictions as to (x) the valid existence of
such Guarantor, (y) the due authorization, execution and enforceability of such
Guarantee Supplement and (z) such other matters as the Trustee may reasonably
request and (ii) take such action (including executing and delivering such
Security Documents, instruments of further assurance and amendments or
supplements thereto, and delivering such additional Opinions of Counsel and
other documents or instruments as required under Section 6.03(c) hereof), in
order that such new or existing Subsidiary shall grant Liens on all Property of
such Subsidiary then existing or thereafter arising that are included in the
definition of "Collateral" in Section 1.01 hereof (but subject to Section 6.02
hereof).
Notwithstanding the foregoing, the Company shall not be required to
cause a Subsidiary of the Company to comply with the first paragraph of this
Section 4.19 in connection with a Qualified GCUK Asset Sale, or any Restricted
Investment by the Company in any Restricted Subsidiary (including the surviving
or continuing entity following a Qualified GCUK Asset Sale), so long as after
giving effect thereto, such surviving or continuing entity, or such Restricted
Subsidiary, is a Qualified Restricted Subsidiary, provided that if the surviving
or continuing entity in such Qualified GCUK Asset Sale or any Subsidiary
thereof, or if any Qualified Restricted Subsidiary or any Subsidiary thereof,
Guarantees any Indebtedness or other obligations of any Credit Party, or grants
a Lien upon the Property of such entity or Qualified Restricted Subsidiary or
any Subsidiary of either thereof securing any Indebtedness or other obligations
of any Credit Party (including any Indebtedness under the Working Capital
Facility) then the Company shall be required to comply with the first paragraph
of this Section 4.19 with respect to such entity, Qualified Restricted
Subsidiary or Subsidiary, as the case may be, and the Property thereof.
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SECTION 4.20. Further Instruments and Acts.
Each Credit Party agrees that at any time and from time to time, upon
the written request of the Trustee, it shall promptly and duly execute and
deliver or cause to be duly executed and delivered any and all such further
instruments and documents as the Trustee may reasonably deem desirable in
obtaining the full benefits of this Indenture and of the rights and powers
herein granted.
SECTION 4.21. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture, the Notes or any of the Security Documents unless such consideration
is offered to be paid or is paid to all Holders that consent, waive or agree to
amend such terms or provisions of this Indenture, the Notes or the Security
Documents in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
ARTICLE V CONSOLIDATION, MERGER AND SALE OF PROPERTY
SECTION 5.01. Merger, Consolidation, or Sale of Property.
The Company will 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 the
Property of the Company and its Restricted Subsidiaries, taken as a whole, in
one or more related transactions, to another Person unless: (a) 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, France, Germany, the United Kingdom,
Switzerland, Luxembourg, Belgium, the Netherlands or Bermuda; (b) 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 its Note Guarantee, this Indenture and the Security Documents
pursuant to agreements in form and substance satisfactory to the Trustee; (c)
immediately after such transaction no Default or Event of Default has occurred
and is continuing; and (d) 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 four-quarter period, (i) be permitted to Incur at least $1.00
of additional
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Indebtedness pursuant to the first paragraph of Section 4.09 hereof or (ii) not
have a higher Consolidated Leverage Ratio than the Consolidated Leverage Ratio
of the Company and its Restricted Subsidiaries immediately prior to such sale,
assignment, transfer, conveyance or other disposition. The Company will not,
directly or indirectly, lease all or substantially all of its Property, in one
or more related transactions, to any other Person. The provisions of this
Section 5.01 will not be applicable to a sale, assignment, transfer, conveyance
or other disposition of Property between or among the Company and the other
Credit Parties.
SECTION 5.02. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition described in Section 5.01 hereof, the
successor entity formed by such consolidation or into or with which the Company
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that from
and after the date of such consolidation, merger, sale, lease, conveyance or
other disposition, the provisions of this Indenture and the Security Documents
referring to the Company shall refer instead to the successor entity and not to
the Company), and may exercise every right and power of the Company under this
Indenture and the Security Documents with the same effect as if such successor
Person had been named as the Company herein and therein, provided that the
predecessor Company shall not be relieved from its obligations in respect of the
Notes or the Note Guarantee, as applicable, except in the case of a sale of all
of the Company's and its Restricted Subsidiaries' Property that meets the
requirements of Section 5.01 hereof.
ARTICLE VI SECURITY DOCUMENTS
SECTION 6.01. Collateral and Security Documents.
(a) Execution of Security Documents. On the Issue Date, the Credit
Parties and the Trustee will enter into the Security Agreement, and such other
security agreements, pledge agreements, assignments, mortgages or other similar
instruments or documents as shall be necessary to create, perfect and make
enforceable Liens upon the Property subject to the Lien of the Security
Agreement as provided in the last paragraph of Section 3 of the Security
Agreement (but subject to Section 6.02 hereof), in order that the Trustee shall
enjoy, for the benefit of the Trustee and the Holders, a Lien on all of the
Property of the Credit Parties described in the definition of "Collateral" in
Section 1.01 hereof, now existing or hereafter arising, and wherever located.
Concurrently with the execution and delivery of the agreements, assignments,
mortgages and other instruments or documents referred to above, the Credit
Parties will furnish to the Trustee Opinions of Counsel, documents and
instruments, and will take the actions, identified on Exhibit F hereto, each of
which shall be reasonably satisfactory to the Administrative Agent under the
Credit Agreement and to the Official Creditors' Committee.
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The Trustee and the Credit Parties hereby acknowledge and agree that
the Trustee holds the Collateral in trust for the benefit of the Trustee and the
Holders, in each case pursuant to the terms of this Indenture and the Security
Documents and the Credit Parties, pursuant to this Indenture as well as the
Security Documents, hereby grant to the Trustee for the ratable benefit of the
Holders a security interest in the Collateral. Each Holder, by accepting a Note,
shall be deemed to have agreed to all the terms and provisions of the Security
Documents.
(b) Equal and Ratable Lien. As among the Holders, the Collateral shall
be held for the equal and ratable benefit of the Holders without preference,
priority or distinction of any thereof over any other.
(c) Use of Collateral. In the absence of an Event of Default, and
subject to the provisions of this Indenture and the applicable Security
Documents, the Credit Parties shall be suffered and permitted to possess,
charter, lease, use, manage, operate and enjoy the Collateral (other than any
Cash Collateral constituting part of the Collateral and deposited or required to
be deposited with the Trustee in the Specified Subsidiary Asset Sale Proceeds
Account, the Asset Sale Proceeds Account or the Specified Subsidiary Casualty
Event Proceeds Account, or for any payment on or redemption or purchase of any
Notes, and other than Possessory Collateral).
(d) Authorization to Trustee. The Trustee is hereby authorized and
directed to enter into each of the Security Documents contemplated hereby and to
perform all of the obligations of the Trustee thereunder.
SECTION 6.02. Exclusion of Certain Liens.
Notwithstanding anything in Section 6.01 or 6.03 hereof or in any of
the Security Documents to the contrary (but without limiting the obligation of
each Credit Party to execute and deliver the Security Agreement), the Credit
Parties shall not be required to take any action to create, perfect and make
enforceable any Lien on any Property of any Credit Party in any jurisdiction
outside of the United States to the extent that any of the following conditions
shall be applicable, the determination of such applicability to be made (x) by
the Administrative Agent and the Official Creditors' Committee with respect to
actions to be taken on the Issue Date (which determination shall be made by the
Administrative Agent and the Official Creditors' Committee in their reasonable
discretion taking into account the intent of the Indenture and the Security
Documents that the Trustee have valid, perfected and enforceable Liens on
substantially all of the Property of the Credit Parties wherever located and
whenever existing), and (y) by the Company with respect to any such
determination to be made after the Issue Date, it being understood that if the
Company shall determine after the Issue Date that any of such conditions are
applicable with respect to any Property of any Credit Party in any jurisdiction
acquired after the Issue Date, the Company shall deliver an Officers'
Certificate to such effect to the Trustee identifying the Property as to which
such condition is applicable and the basis upon which such determination has
been made:
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(i) the taking of such action to create, perfect or make
enforceable such Lien with respect to such Property is prohibited under
applicable law, or requires that a governmental approval (other than
merely ministerial acts, notices and the like) be obtained, which
approval has not yet been obtained, provided that each Credit Party
agrees to use its commercially reasonable efforts to obtain any such
governmental approval on or before the Issue Date (with respect to any
such Property owned by it on the Issue Date), and as promptly as
practicable thereafter (with respect to any such Property acquired by
it after the Issue Date),
(ii) any of the following conditions shall exist, namely (x)
no law is applicable to the taking of a Lien on such Property (such as
with respect to undersea cables in international waters) or (y)
applicable law requires a metes and bounds description (or equivalent)
in order to create, perfect or make enforceable a Lien on such Property
and it is not practicable to prepare such a description, provided that
to the extent that a generic description of such Property may be
sufficient to create, perfect or make enforceable such Lien and thereby
gain priority over certain creditors of the Credit Party (even though
such Lien would not be enforceable against all creditors to the same
extent as a Lien under the Uniform Commercial Code is enforceable
against creditors with respect to Property in the United States of a
debtor located in the United States), such Credit Party will
nevertheless take such action as shall be appropriate to create,
perfect and make enforceable such Lien against such smaller category of
creditors,
(iii) the aggregate cost of obtaining and maintaining a Lien
upon the Property (other than real property or real property interests)
of such Credit Party in such jurisdiction through the Stated Maturity
of the Notes (including all recording and stamp fees, taxes, notary
fees and local counsel legal expenses, but excluding fees of any Credit
Party's counsel other than local counsel in the jurisdiction of any
such Lien or Property, New York counsel to the Administrative Agent and
to the Official Creditors' Committee and any costs that arise at the
time of the enforcement of such Lien) are (A) reasonably estimated to
exceed 5% of the aggregate fair market value of the Property of such
Credit Party located in such jurisdiction, provided that the foregoing
shall not be applicable to any jurisdiction to the extent that such
costs shall not be greater than $80,000 with respect to Liens being
taken in such jurisdiction on the Issue Date, or not be greater than
$80,000 during any calendar year with respect to Liens being taken in
such jurisdiction after the Issue Date, and (B) such Property is
immaterial in relation to the aggregate value of the Property of all of
the Credit Parties in which the Trustee is obtaining a valid, perfected
and enforceable Lien and is not a necessary link or equipment (assuming
no cable or fiber capacity or rights thereto are available from any
other provider) to enable any Material Subsidiary to conduct any
material portion of its operations or business, and
(iv) such Property consists of a parcel of real property or
real property interests and the aggregate cost of obtaining and
maintaining a Lien upon such Property in such jurisdiction through the
Stated Maturity of the Notes (including
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all recording and stamp fees, taxes, notary fees and local counsel legal
expenses, but excluding fees of New York counsel to the Administrative
Agent and to the Official Creditors' Committee and any costs that arise at
the time of the enforcement of such Lien) are reasonably estimated to
exceed 5% of the aggregate fair market value of such parcel and shall be
greater than $80,000 with respect to Liens being take in such jurisdiction
on the Issue Date, and greater than $80,000 during any calendar year with
respect to Liens being taken in such jurisdiction after the Issue Date, or
greater than $30,000 for any individual parcel of Property (such latter
estimate to be taken as an average of the costs of taking Liens on all
parcels of real property or real property interests in the respective
jurisdiction on the Issue Date and thereafter, and not on the cost of
obtaining a Lien on any particular parcel in such jurisdiction) and such
Property is immaterial in relation to the aggregate value of the Property
of all of the Credit Parties in which the Trustee is obtaining a valid,
perfected and enforceable Lien and is not a necessary link (assuming no
cable or fiber capacity or rights thereto are available from any other
provider) to enable any Material Subsidiary to conduct any material portion
of its operations or business, and
provided that (x) in the event that any Credit Party shall take action to
create, perfect or make enforceable Liens in favor of the Working Capital
Facility Lenders on the Property of any Credit Party in any jurisdiction, the
foregoing conditions shall be deemed inapplicable, (y) none of the foregoing
conditions shall be applicable to the taking of any Lien in Possessory
Collateral, or in the Equity Interests of any Issuer under and as defined in the
Security Agreement or, after the occurrence and during the continuance of an
Event of Default, Cash Collateral not held in the Asset Sale Proceeds Account,
the Specified Subsidiary Asset Sale Proceeds Account or the Specified Subsidiary
Casualty Event Proceeds Account and (z) so long as no Event of Default shall
have occurred and be continuing, the Credit Parties shall not be required to
take any action to create, perfect and make enforceable any Lien in Cash
Collateral (other than any Cash Collateral held in the Asset Sale Proceeds
Account, the Specified Subsidiary Asset Sale Proceeds Account and the Specified
Subsidiary Casualty Event Proceeds Account).
In determining under this Section 6.02 whether a Lien may be created,
perfected or made enforceable with respect to any Property in any particular
jurisdiction, the Credit Parties acknowledge that it is not the intent of this
Section 6.02 to dispense with the requirement that action be taken with respect
to a Liens simply because there may be qualifications or exceptions to the Liens
taken, or because there may be qualifications or exceptions to any required
opinion of counsel in the applicable jurisdiction by reason of legal
uncertainties as to the manner in which a Lien is to be taken, as to the
applicable law or by reason of any other issues. In addition, to the extent
that, although there may be uncertainty under applicable local law as to the
manner in which to create, perfect or make enforceable a Lien on any Property,
there is an accepted practice in the relevant jurisdiction that is typically
undertaken to take a Lien on such Property, it is nevertheless the intent of the
Credit Parties that the actions and Security Documents customarily adopted in
such jurisdiction shall be taken and executed, as applicable. Without limiting
the generality of the foregoing, it is recognized by the
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parties that Liens in certain countries (such as Mexico or Argentina) are
granted to creditors not through a direct pledge, but through a transfer of
title in Property to a trustee, such as under a fidei comiso, and that creating,
perfecting and making enforceable a Lien in such manner is agreed to be an
acceptable method of taking a Lien on Property in any jurisdiction.
For purposes of clause (i) of the first paragraph of this Section
6.02, notwithstanding that a Lien may to a certain extent or in certain
circumstances be prohibited under applicable law, the respective Credit Party
shall nevertheless take action to create, perfect and make enforceable such Lien
if the relevant Security Document states that such Lien is being taken "to the
maximum extent permitted under applicable law" (or words of similar import),
unless such Credit Party delivers an Opinion of Counsel from the respective
jurisdiction that such a qualification in such Security Document would be
ineffective for purposes of avoiding a violation of law.
For purposes of clauses (iii) and (iv) of the first paragraph of this
Section 6.02, the term "jurisdiction" shall refer to a country (such as Canada
or Mexico) and not to the particular provinces, States or other political
subdivisions within such country.
SECTION 6.03. Maintenance of Liens.
(a) Maintenance and Preservation of Liens. The Credit Parties will
(subject to Section 6.02 hereof) take or cause to be taken all action required
to maintain, preserve and protect the Liens on the Collateral granted by this
Indenture and the Security Documents, including causing any Security Document,
instruments of further assurance and all amendments or supplements thereto, to
be promptly recorded, registered and filed and at all times to be kept recorded,
registered and filed, and will execute and file statements and cause to be
issued and filed statements, all in such manner and in such places and at such
times as are prescribed in the Security Documents or in this Indenture and as
may be required by law fully to preserve and protect the rights of the Holders
and the Trustee under this Indenture and the Security Documents to the
Collateral.
Without limiting the generality of the foregoing, if after the Issue
Date the Company or any of its Restricted Subsidiaries shall create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any
kind upon any of its Property securing the Working Capital Facility (which
Property is not already subject to the Lien of the Security Documents or to
perfection thereunder), the Company shall, or shall cause such Restricted
Subsidiary to, as the case may be, (i) execute and file, as applicable, any and
all further Security Documents and other instruments required under applicable
law, upon substantially the same terms as the security documents securing the
Working Capital Facility, as shall be necessary to effectuate a Lien subject to
the Working Capital Facility and the Permitted Liens referred to in clauses (e),
(h), (i), (j), (k), (l), (m), (n) and (o) of the definition of such term in
Section 1.01 hereof upon such Property for the benefit of the Holders, unless
such Lien cannot be effectuated under applicable law and (ii) deliver an Opinion
of Counsel reasonably satisfactory to the Trustee that such
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Security Documents are valid, binding and enforceable obligations, it being
understood that in no event will the Working Capital Facility be entitled to the
benefit of any Liens on the assets of, or Equity Interests in, GCUK, Global
Marine or their respective Subsidiaries.
(b) Recording and Filing Fees. The Credit Parties will, from time to
time promptly pay and discharge all recording or filing fees, charges and taxes
relating to the filing or registration of this Indenture and the Security
Documents, any amendments thereto and any other instruments of further
assurance.
(c) Confirmatory Action Regarding Liens. The Credit Parties will
furnish to the Trustee:
(i) without limiting the provisions of Exhibit F hereto with respect
to documents to be delivered on the Issue Date, promptly after the
execution and delivery of this Indenture, the Security Documents, each
amendment or supplement to a Security Document or other instrument of
further assurance, an Opinion or Opinions of Counsel stating that, in the
opinion of such counsels, this Indenture, the Security Documents, any such
amendment or supplement to a Security Document and other instruments of
further assurance have been properly recorded, endorsed, registered and
filed, or have been received by the applicable governmental authority for
recording, filing or registration, to the extent necessary (but subject to
Section 6.02 hereof) to make effective and perfect the Liens intended to be
created by this Indenture and the Security Documents and reciting the
details of such action or referring to prior Opinions of Counsel in which
such details are given, or stating that, in the opinion of such counsel, no
such action is necessary to make such Liens effective;
(ii) on or before January 1 in each year beginning with January 1,
2004, (A) an Opinion or Opinions of Counsel, dated as of a date not earlier
than 30 days prior to such date, either stating that, in the opinion of
such counsels, such action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and re-filing of this
Indenture, the Security Documents, of all amendments or supplements to the
Security Documents, financing statements, continuation statements or other
instruments of further assurances as is necessary (but subject to Section
6.02 hereof) to maintain the Lien of this Indenture and the Security
Documents (including the Lien on any Property acquired by the Issuer or any
Guarantor since the end of the preceding calendar year) and reciting the
details of such action or referring to prior Opinions of Counsel in which
such details are given, or stating that, in the opinion of such counsel, no
such action is necessary to maintain such Lien and (B) an Officers'
Certificate, dated as of a date not earlier than 30 days prior to such
date, stating that all fees required to be paid under each Security
Document have been paid; and
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(iii) from time to time, notice of any recording, registration,
filing, payment or other action taken in accordance with the provisions of
Section 6.03(a) hereof, in each case as promptly as practicable after
taking any such action.
The Credit Parties will comply with Section 314(b) of the TIA.
(d) Insurance. The Company will cause all casualty insurance
maintained by the Company or any of the other Credit Parties with respect to any
of the Collateral to designate the Trustee as the loss payee thereof (or, in the
case of Shared Collateral, to designate the agent under the Working Capital
Facility as loss payee, with the Trustee being designated as an additional
insured), as its interests may be, and shall provide copies of any such policies
(showing such designation) to the Trustee on the Issue Date and annually
thereafter on each January 1, beginning with January 1, 2004, and shall deliver
an Officers' Certificate, together with copies of appropriate endorsements,
showing that such designation continues to in effect.
(e) Amendments to Security Documents. The Company will not, and will
not permit any Restricted Subsidiary thereof to, take or omit to take any action
which action or omission might or would have the result of impairing the Lien
with respect to the Collateral for the benefit of the Trustee and the Holders,
and the Company shall not, and shall not permit any Restricted Subsidiary
thereof to, grant to any Person other than the Trustee, for the benefit of the
Trustee and the Holders, any interest whatsoever in any of the Collateral,
except as expressly permitted under this Indenture and the Security Documents,
provided that nothing herein shall be deemed to prohibit any amendment,
modification or supplement of this Indenture or any Security Document (i) in
order to effectuate the subordination of the Lien of this Indenture and the
Security Documents to any Lien securing the Working Capital Facility as
contemplated by Section 6.04 hereof or (ii) in connection with the release by
the Trustee of any Lien upon any Property of the Company or any Restricted
Subsidiary thereof that is the subject of a sale or other disposition (including
any Asset Sale or any Specified Subsidiary Asset Sale) permitted hereunder, to
the extent such release is required pursuant to Section 6.05 hereof.
SECTION 6.04. Subordination to Working Capital Facility.
The Liens created pursuant to the Security Documents shall be subject
to no other Lien other than (a) in the case of any Collateral, Permitted Liens
referred to in clauses (e), (h), (i), (j), (k), (l), (m), (n) and (o) of the
definition of such term in Section 1.01 hereof and (b) in the case of the Shared
Collateral, Liens securing the obligations of the Credit Parties under and in
respect of the Working Capital Facility. In the event that the Company shall at
any time Incur Indebtedness in respect of the Working Capital Facility and such
Indebtedness shall be secured by any of the Property of the Company or any of
its Restricted Subsidiaries, the Trustee shall, upon receipt of an Issuer Order
to such effect, execute and deliver an Intercreditor Agreement in substantially
the form of Exhibit C hereto, together with such other documents and instruments
as shall be necessary to effect the subordination of the Liens of the Security
Documents to the Liens
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securing the Working Capital Facility, insofar as relating to the Shared
Collateral, in each case to the extent set forth in an Issuer Order and an
Opinion of Counsel. Each Holder, by acceptance of the Notes, agrees to be bound
by the provisions of the Intercreditor Agreement upon execution and delivery
thereof.
SECTION 6.05. Release of Liens.
(a) Release Upon Disposition, Etc. So long as no Default or Event of
Default has occurred and is continuing, (i) upon any Asset Sale or Specified
Subsidiary Asset Sale in compliance with the provisions of this Indenture and
the Security Documents (including the provisions of Section 3.08 and 4.10
hereof), Collateral which was the subject of such a sale or other disposition
shall be released from the Lien created by this Indenture and the Security
Documents in accordance with the provisions of this Indenture, the Security
Documents and the Trust Indenture Act and (ii) in the event the Company or any
of its Restricted Subsidiaries shall at any time enter into a Qualified
Receivables Transaction, any Receivables subject to such Qualified Receivables
Transaction (and any Lien upon any Equity Interests in any related Receivables
Entity) shall be released from the Lien created by this Indenture and the
Security Documents in accordance with the provisions of this Indenture, the
Security Documents and the Trust Indenture Act.
In addition, so long as no Default or Event of Default has occurred
and is continuing, upon any Asset Sale or Specified Subsidiary Asset Sale that
results in any Credit Party (other than the Company) no longer being a
Restricted Subsidiary of the Company, such Guarantor shall be released from its
obligations under its Note Guarantee and from the Lien created by this Indenture
and the Security Documents in accordance with the provisions of this Indenture,
the Security Documents and the Trust Indenture Act.
(b) Execution by Trustee of Releases. Upon the request of the Company
and pursuant to an Officers' Certificate certifying that all conditions
precedent hereunder to any Asset Sale or Specified Subsidiary Asset Sale, or a
Qualified Receivables Transaction, have been met and (in the case of an Asset
Sale or Specified Subsidiary Asset Sale) setting forth the aggregate amount of
the Net Cash Proceeds to be received upon such Asset Sale or Specified
Subsidiary Asset Sale, then upon the satisfaction of such conditions precedent
hereunder and (in the case of an Asset Sale or Specified Subsidiary Asset Sale)
the receipt by the Trustee of such Net Cash Proceeds for deposit into the
Specified Subsidiary Asset Sale Proceeds Account or the Asset Sale Proceeds
Account, as applicable, and the taking of such action as shall be necessary to
create, perfect and make enforceable the Lien on any other consideration
received in connection with such Asset Sale or Specified Subsidiary Asset Sale,
the Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release (prepared by the Company)
reasonably required to effect the release of any Collateral and, if applicable,
any Note Guarantee as provided in paragraph (a) above.
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(c) No Impairment of Continuing Security. The release of any
Collateral from the Lien of this Indenture and the Security Documents will not
be deemed to impair the security under this Indenture in contravention of the
provisions hereof, if and to the extent Collateral is released pursuant to the
terms hereof and of the Security Documents. Notwithstanding anything to the
contrary contained herein, the Company and its Restricted Subsidiaries are
authorized to sell Collateral in the ordinary course of business free of all
Liens under this Indenture and the Security Documents without any action on the
part of the Trustee, the Holders or otherwise, provided that upon receipt by the
Trustee of an Issuer Order requesting confirmation by the Trustee in writing of
such release (which Issuer Order shall be accompanied by an Officers'
Certificate in substantially the form of Exhibit G hereto to the effect that the
particular Collateral the subject of such request was sold in the ordinary
course of business), the Trustee shall so confirm that such Property has been
released from the Lien of this Indenture and the Security Documents. The Trustee
shall have no duty or obligation to verify the facts or statements set forth in
the Issuer Order or Officers' Certificate to be provided to the Trustee in
accordance with this Section. In connection herewith, the Company agrees that,
unless not required by the TIA, every [semi-annual date] and [semi-annual date]
of each year commencing [first semi-annual date] after the Issue Date, the
Company shall deliver to the Trustee, on behalf of the Holders, an Officers'
Certificate stating that all sales of Collateral in the six months preceding the
date of delivery of such certificate either (i) were in the ordinary course of
business or (ii) otherwise complied with the terms of this Section 6.05, the
other terms of this Indenture and the Security Documents and the terms of the
TIA.
To the extent applicable, the Issuer and any Guarantor shall cause
Section 314(d) of the Trust Indenture Act to be complied with. Any certificate
or opinion required by Section 314(d) of the Trust Indenture Act may be made by
any Officer of the Company, provided that, to the extent required by Section
314(d) of the Trust Indenture Act, any such certificate or opinion shall be made
by an "independent appraiser" or other "expert" (as such terms are set forth in
Section 314(d) of the Trust Indenture Act).
ARTICLE VII Default and Remedies
SECTION 7.01. Events of Default.
The following events shall, so long as the same shall have occurred
and be continuing, constitute "Events of Default" hereunder:
(a) default for 30 or more days in the payment when due of interest on
the Notes;
(b) default in the payment when due (at Stated Maturity, upon
redemption, upon required repurchase, upon declaration or otherwise) of the
principal of the Notes;
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(c) failure by the Company or any of its Restricted Subsidiaries to
comply with Sections 3.08, 3.09 or 4.15 hereof, or with Article V hereof;
(d) failure by the Company or any of its Restricted Subsidiaries to
comply with Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16,
4.17 or 4.19 for 20 or more days after notice specifying such failure shall
have been given to the Company by the Trustee or the Holders of at least
25% or more in aggregate principal amount of the Notes then outstanding;
(e) failure by the Company or any of its Restricted Subsidiaries for
45 or more days after notice from the Trustee, or Holders of 25% or more of
the aggregate principal amount of the Notes, to comply with any of its
other agreements in this Indenture or any of the Security Documents;
(f) default in the payment when due (whether at stated maturity, by
acceleration or otherwise) of any sums 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 date of this Indenture, to
the extent that the aggregate amount of Indebtedness in respect of which
such default occurs is $2,500,000 or more;
(g) failure by the Company or any of its Restricted Subsidiaries to
pay final judgments not subject to appeal aggregating in excess of
$2,500,000 or more (net of applicable insurance coverage which is
acknowledged in writing by the insurer), which judgments are not paid,
discharged or stayed for a period of 30 or more days;
(h) except as provided by this Indenture, any Note Guarantee shall be
held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Guarantor, or
any Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Note Guarantee;
(i) the Company or any of its Restricted Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian of it or for all
or substantially all of its Property,
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(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due;
(j) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries,
(ii) 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
(iii) orders the liquidation of the Company or any of its
Restricted Subsidiaries; and the order or decree remains unstayed and
in effect for 30 or more consecutive days; or
(k) any of the following shall occur and continue for a period of 15
consecutive days: (i) the Liens created by the Security Documents shall at
any time, with respect to any material portion of the Property of the
Credit Parties taken as a whole, not constitute valid and perfected Liens
on the Collateral intended to be covered thereby (to the extent perfection
by filing, registration, recordation or possession is required herein or
therein) in favor of the Trustee for the benefit of the Holders hereunder,
free and clear of all other Liens (other than Liens not prohibited under
Section 4.12 hereof or under the respective Security Documents); (ii)
except for expiration in accordance with its terms, any of the Security
Documents shall for whatever reason be terminated, or shall cease to be in
full force and effect, with respect to any material portion of the Property
of the Credit Parties taken as a whole; or (iii) any Liens created
thereunder shall, with respect to any material portion of the Property
intended to be subject thereto, be declared invalid or unenforceable or any
Credit Party shall assert, in any pleading in any court of competent
jurisdiction, that any such Lien is invalid or unenforceable.
SECTION 7.02. Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of a majority 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 paragraph (i)
or (j) of Section 7.01 hereof with respect to outstanding Notes occurs with
respect to any Credit Party, 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
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existing Events of Default (except nonpayment of principal or interest that has
become due solely because of the acceleration) have been cured or waived.
SECTION 7.03. Other Remedies.
If an Event of Default with respect to outstanding Notes occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal and interest, if any, on the Notes or to enforce the performance of
any provision of the Notes, this Indenture or the Security Documents.
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 7.04. Waiver of Past Defaults.
Subject to Sections 7.02, 7.07 and 10.02 hereof, Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes by
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 and
interest on the Notes (including in connection with a required redemption or 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 7.05. Control by Majority.
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 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 7.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture
to the extent it relates to the Notes, this Indenture or the Security Documents
only if:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default or the Trustee shall have distributed notice of an Event
of Default to Holders in accordance with the provisions of this Indenture;
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(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 or Holders 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 15 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 15-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 7.07. 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 of and interest on such
Note on or after the respective due dates expressed in such Note (including in
connection with a required redemption or 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 7.08. Collection Suit by Trustee.
(a) Suit Upon Payment Default. If an Event of Default specified in
Section 7.01(a) or (b) hereof occurs and is continuing with respect to the
Notes, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuer and the Guarantors for the whole
amount of principal of 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.
(b) Suit Generally Upon Default. If an Event of Default occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or, in any Security Document, or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy, subject,
however, to Section 7.05 hereof.
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SECTION 7.09. 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 allowed in any judicial proceedings relative to the Issuer or any
Guarantor (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 and disbursements of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07 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 8.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be paid out of any and all distributions, dividends, money, securities and other
Property 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 7.10. Priorities.
If the Trustee collects any money with respect to any Notes pursuant
to this Article VII, or pursuant to any of the Security Documents, it shall pay
out the money in the following order:
'First: to the Trustee, its agents and attorneys for amounts due under
Section 8.07 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 and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Third: to the Credit Parties or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a Record Date and payment date for any payment to
Holders of Notes pursuant to this Section 7.10.
SECTION 7.11. 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 costs 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 7.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 7.06 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
SECTION 7.12. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or wrongfully taken Notes in Section 2.06
hereof, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article VII or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Issuer, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Issuer, the
Guarantors, the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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ARTICLE VIII Trustee
SECTION 8.01. General.
The duties and responsibilities of the Trustee shall be as provided by
the TIA and as specifically set forth herein, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and the Security Documents and use the same
degree of care and skill in such exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs. Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article VIII. The rights,
privileges, immunities and indemnities of the Trustee set forth in this Article
VIII shall apply to the Trustee under each of the Security Agreements as if
fully set forth therein.
SECTION 8.02. Certain Rights of Trustee; Reliance on
Certificate.
(a) Reliance by Trustee. Subject to Sections 315(a) through (d) of
the TIA:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person (and the Trustee need
not investigate any fact or matter stated in such document);
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 12.04 hereof and the Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion;
(iii) the Trustee may act through its attorneys, agents, custodians
and nominees and shall not be responsible for the misconduct or negligence
of any attorney, agent, custodian or nominee appointed with due care;
(iv) 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 security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
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(v) 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 its rights or powers, provided that the Trustee's conduct does
not constitute gross negligence or willful misconduct;
(vi) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or involving the exercise of any right, duty,
trust or power conferred upon the Trustee under the TIA or this
Indenture;
(vii) the Trustee shall not be charged with knowledge of (A)
any Default or Event of Default, (B) the identity of any Restricted
Subsidiary (C) of the existence of any Change of Control, Asset Sale,
Specified Subsidiary Asset Sale or Specified Subsidiary Casualty
Event, or (D) any default under any Security Documents unless the
Trustee shall have received written notice thereof from the Issuer or
any Holder;
(viii) in no event shall the Trustee be liable for any failure
or delay in the performance of its obligations hereunder because of
circumstances beyond the Trustee's control, including, but not limited
to, acts of God, flood, war (whether declared or undeclared),
terrorism, fire, riot, embargo, government action, including any laws,
ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
(ix) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties and shall not be required to investigate or verify the
facts or matters stated therein;
(x) the Trustee will not be liable hereunder or under any of
the Security Documents except for its own negligence or willful
misconduct;
(xi) 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 negligent in ascertaining the pertinent
facts or acted with willful misconduct;
(xii) anything in this Indenture to the contrary
notwithstanding, but subject to the provisions of the TIA as they
relate to this Indenture, in no event shall the Trustee be liable for
special, indirect or consequential loss or damage of
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any kind whatsoever (including but not limited to lost profits), even
if the Trustee has been advised of the likelihood of such loss or
damage regardless of the form of action;
(xiii) the Trustee shall not be bound to make any
investigation into the facts or matter stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent entitlement order, approval or other paper or document;
(xiv) the Trustee shall have no obligation to invest and
reinvest any cash held in any account in the absence of timely and
specific written investment direction from the Issuer or the Company.
In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee
shall have no liability in respect of losses incurred as a result of
the liquidation of any investment prior to its stated maturity or the
failure of a secured party to provide timely written investment
direction; and
(xv) the Trustee shall have no responsibility or obligation
with respect to the preparation, execution or filing of any report or
certification to be delivered to the SEC with respect to the Issuer.
(b) Instructions by Beneficial Owners of Notes.
Notwithstanding the provisions of the foregoing paragraph (a), the Trustee, in
receiving instructions of Holders, shall be entitled to conclusively rely and
shall follow the instruction of any Person that it reasonably believes to be a
Beneficial Owner of Notes, provided that such instruction is accompanied by (i)
certification by an officer of such Beneficial Owner, stating the outstanding
principal amount of Notes beneficially held by it, and (ii) an indemnity
agreement (if such indemnity is otherwise required under the provisions of this
Indenture) in form reasonably satisfactory to the Trustee, executed by such
Person agreeing to indemnify the Trustee against claims, damages and losses
incurred in reliance on said officer's certificate.
SECTION 8.03. May Hold Notes.
The Trustee, any Paying Agent, Registrar or any other agent of
the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Notes and may make loans to, accept deposits from, perform services
for, and otherwise deal with the Issuer or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 310(b) and 311 of the TIA.
SECTION 8.04. Trustee's Disclaimer.
The Trustee (a) makes no representation as to the validity or
adequacy of this Indenture, the Security Documents or the Notes and (b) shall
not be responsible for (i) any statement in the Notes other than its certificate
of authentication or (ii) any statements in other Security Documents by other
parties.
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SECTION 8.05. Notice of Default.
If any Default or any Event of Default occurs and is
continuing and if such Default or Event of Default is known to the Trustee, the
Trustee shall mail to each Holder in the manner and to the extent provided in
Section 313(c) of the TIA notice of the Default or Event of Default within 90
days after the same shall become known to the Trustee, unless such Default or
Event of Default has been cured, provided that, except in the case of a default
in the payment of the principal of or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with the May 15
following the date of this Indenture, the Trustee shall mail to each Holder as
provided in Section 313(c) of the TIA a brief report, dated as of such May 15,
if, required by Section 313(a) of the TIA. The Trustee shall also comply with
TIA Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange (if any) on which the
Notes are listed. The Issuer agrees to promptly notify the Trustee whenever the
Notes become listed on any stock exchange and of any delisting thereof.
SECTION 8.07. Compensation and Indemnity.
(a) Compensation. The Issuer shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee upon request for all reasonable expenses and disbursements incurred or
made by it. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) Indemnification. Subject to Sections 315(a) through (d) of
the TIA, the Issuer shall indemnify the Trustee (and its officers, directors,
employees and agents) for, and hold it harmless against, any loss or liability
or expense incurred by it without negligence or bad faith on its part arising
out of or in connection with the execution, acceptance or administration of this
Indenture and its duties under this Indenture, the Notes and the Security
Documents, including the costs and expenses of defending itself against any
claim or liability and of complying with any process served upon it or any of
its officers in connection with the exercise or performance of any of its powers
or duties under this Indenture, the Notes and the Security Documents.
(c) Lien of Trustee. To secure the Issuer's payment
obligations in this Section 8.07, the Trustee shall have a lien prior to the
Notes on all money or other
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Property held or collected by the Trustee, in its capacity as Trustee, except
money or other Property held in trust to pay principal of and interest on
particular Notes.
(d) Expenses During Bankruptcy. If the Trustee incurs expenses
or renders services after the occurrence of an Event of Default specified in
Section 7.01(i) or (j) hereof, the expenses and the compensation for the
services shall be intended to constitute expenses of administration under the
United States Bankruptcy Code or any applicable federal or state law for the
relief of debtors.
(e) Survival. The provisions of this Section 8.07 shall
survive the resignation or removal of the Trustee and the termination of this
Indenture or the Security Documents.
SECTION 8.08. Replacement of Trustee.
(a) Effectiveness of Resignation or Removal. 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 8.08.
(b) Resignation and Removal. The Trustee may resign by so
notifying the Issuer in writing at least 30 days prior to the date of the
proposed resignation. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by so notifying the Trustee in writing
and may appoint a successor Trustee with the consent of the Issuer. The Issuer
may remove the Trustee if:
(i) the Trustee fails to comply with Section 8.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its Property; or
(iv) the Trustee becomes incapable of acting.
(c) Appointment of Successor. If the Trustee resigns or is
removed, or if a vacancy exists in the office of Trustee for any reason, the
Issuer shall promptly appoint a successor Trustee. If the successor Trustee does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuer or the Holders of a majority in principal
amount of the outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(d) Acceptance by Successor. A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the
Issuer. Immediately after the delivery of such written acceptance, subject to
the lien provided in Section 8.07 hereof, (i) the retiring Trustee shall
transfer all Property held by it as Trustee
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to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
(e) Removal by Court. If the Trustee fails to comply with
Section 8.10 hereof, any Holder who satisfies the requirements of Section 310(b)
of the TIA may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(f) Rights of Retiring Trustee. Notwithstanding replacement
of the Trustee pursuant to this Section 8.08, the Issuer's obligation under
Section 8.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee with the same effect as if the
successor Trustee had been named as the Trustee herein.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1)(2) and(5) of the TIA. The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee and the Issuer shall
comply with Section 310(b) of the TIA, provided that there shall be excluded
from the operation of Section 310(b)(1) of the TIA any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the TIA are met, provided that
nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
TIA.
SECTION 8.11. Money Held in Trust.
The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuer. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 8.12. Withholding Taxes.
The Trustee, as Paying Agent for the Issuer, shall exclude and
withhold from each payment of principal and interest and other amounts due
hereunder or under the Notes any and all withholding taxes applicable thereto to
the extent that the Trustee has been specifically instructed by the Issuer that
stated amounts for taxes should be withheld. The Trustee agrees to act as such
withholding agent and, in connection
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therewith, whenever it has been so instructed that any present or future taxes
or similar charges are required to be withheld with respect to any amounts
payable in respect of the Notes, (i) shall withhold such amounts and timely pay
the same to the appropriate authority in the name of and on behalf of the
Holders, (ii) shall file in a timely manner any necessary withholding tax
returns or statements that it is required to file by law, and (iii) as promptly
as possible after the payment thereof, it shall deliver to each Holder such
documentation (if any) as it may be required by law to deliver, showing the
payment thereof.
SECTION 8.13. Preferential Collection of Claims Against the
Issuer.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated therein.
ARTICLE IX Application of Trust Moneys
SECTION 9.01. "Trust Moneys" Defined.
All Cash Collateral received by the Trustee at any time
(including Qualified Cash Equivalents deposited in the Asset Sale Proceeds
Account, the Specified Subsidiary Asset Sale Proceeds Account or the Specified
Subsidiary Casualty Event Proceeds Account pursuant to the terms of this
Indenture or any Security Document):
(a) upon the release of Property from the Lien of this
Indenture and the Security Documents, including all moneys received in
respect of the principal of all purchase money, governmental and other
obligations; or
(b) as Net Cash Proceeds deposited in the Asset Sale Proceeds
Account, Specified Subsidiary Asset Sale Proceeds Account or the
Specified Subsidiary Casualty Event Proceeds Account (including
investment income thereon); or
(c) as other proceeds of insurance upon any part of the
Collateral (other than any liability insurance proceeds payable to the
Trustee for any loss, liability or expense incurred by it); or
(d) for application under this Article IX as elsewhere
provided in this Indenture or any Security Document, or whose
disposition is not elsewhere otherwise specifically provided for herein
or in any Security Document;
(all such moneys being herein sometimes called "Trust Moneys"), shall be held by
the Trustee in its name for the benefit of the Holders as a part of the
Collateral as provided in the Security Documents, shall be held in United States
dollars or U.S. Dollar denominated obligations, and, upon any entry upon or sale
of the Collateral or any part thereof pursuant to Article VII hereof, said Trust
Moneys shall be applied in accordance
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with Section 7.10 hereof; but, prior to any such entry or sale, all or any part
of the Trust Moneys may be withdrawn, and shall be released, paid or applied by
the Trustee, from time to time as provided in Sections 9.02 to 9.04 hereof,
inclusive, and may be applied by the Trustee as provided in Section 9.08(b)
hereof.
SECTION 9.02. Retirement of Notes.
Other than Trust Moneys which shall be, from time to time (i)
deposited or held in the Asset Sale Proceeds Account or the Specified Subsidiary
Casualty Event Proceeds Account and applied in accordance with Sections 9.03 and
9.04 hereof or (ii) set aside, segregated or earmarked, from time to time for
any redemption or repurchase of Notes required under the terms of this
Indenture, including Sections 3.08, 4.10 or 4.15 hereof and otherwise, the
Trustee shall apply Trust Moneys to the ratable payment of the principal of or
interest on any Notes, at final maturity or to the redemption thereof, as the
Issuer shall direct pursuant to an Issuer Order.
SECTION 9.03. Withdrawals of Insurance Proceeds and
Condemnation Awards.
Trust Moneys from time to time held in the Asset Sale Proceeds
Account and the Specified Subsidiary Casualty Event Proceeds Account, and
representing the Net Cash Proceeds of a Casualty Event (or investment earnings
upon such Net Cash Proceeds), may be withdrawn by the Company and shall be paid
by the Trustee to reimburse the Company for expenditures made, or to pay costs
incurred, by the Company or the Restricted Subsidiary that was the subject of
such Casualty Event to repair, rebuild or replace the Property destroyed,
damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers' Certificate dated not more than 30 days
prior to the date of the application for the withdrawal and payment of
such Trust Moneys and signed also in the case of the following clauses
(i) and (vi), by an Independent contractor, setting forth:
(i) that expenditures have been made, or costs
incurred, or will be incurred simultaneously with such
withdrawal of Trust Moneys, by the Company or the applicable
Subsidiary in a specified amount for the purpose of making
certain repairs, rebuildings and replacements of the
Collateral, which shall be briefly described, and stating the
fair value thereof to the Company or such Subsidiary at the
date of the acquisition thereof by the Company or such Credit
Party;
(ii) that no part of such expenditures or costs, in
any previous or then pending application, has been or is being
made the basis for the withdrawal of any Trust Moneys pursuant
to this Section 9.03;
(iii) that no part of such expenditure or costs has
been paid out of any award for or the proceeds from any of the
Collateral being taken
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not required to be paid into the Asset Sale Proceeds Account
or Specified Subsidiary Casualty Event Proceeds Account, as
the case may be;
(iv) that there is no outstanding Indebtedness or
other obligation, other than costs for which payment is being
requested, known to the Company, after due inquiry, for the
purchase price or construction of such repairs, rebuildings or
replacements, or for labor, wages, materials or supplies in
connection with the making thereof, which, if unpaid, might
become the basis of a vendor's, mechanics', laborer's,
materialmen's statutory or other similar Lien upon any of such
repairs, rebuildings or replacement, which Lien might, in the
opinion of the signers of such certificate, materially impair
the security afforded by such repairs, rebuildings or
replacement;
(v) that the Property to be repaired, rebuilt or
replaced is necessary or desirable in the conduct of the
Company's or the applicable Subsidiary's business;
(vi) that no Default or Event of Default shall have
occurred and be continuing;
(vii) that the Trust Moneys that will remain after
such withdrawal will be sufficient to complete the repair,
rebuilding or replacement of the Property destroyed, damaged
or taken; and
(viii) that all conditions precedent herein provided
for relating to such withdrawal and payment have been complied
with; and
(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are
therewith delivered to the Trustee conform to the applicable
requirements of this Indenture and the Security Documents, and
that, upon the basis of such request by the Company and the
accompanying documents specified in this Section 9.03, all
conditions precedent herein provided for relating to such
withdrawal and payment have been complied with;
(ii) that the Company or the applicable Subsidiary
has acquired, or upon payment of the costs to be paid will
acquire, title to such repairs, rebuildings and replacements
at least equivalent to its title to the Property destroyed,
damaged or taken; and
(iii) that all the Company's or the applicable
Subsidiary's right, title and interest in and to said repairs,
rebuildings or replacements, or combination thereof, are then
or, upon payment of the costs to be paid will
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be, subject to the Lien of this Indenture and the Security
Documents to the same extent as the Property that was the
subject of such Casualty Event.
Upon compliance with the foregoing provisions of this Section
9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the
character aforesaid equal to the amount of the expenditures or costs stated in
the Officers' Certificate delivered pursuant to Section 9.03(a) hereof, or the
fair value to the Company or the applicable Restricted Subsidiary thereof of
such repairs, rebuildings and replacements stated in such Officers' Certificate,
whichever is less.
SECTION 9.04. Withdrawals of Sale Proceeds.
To the extent that any Trust Moneys consist of Net Cash
Proceeds of any Asset Sale (other than a Casualty Event) and the Company elects
to reinvest such Net Cash Proceeds (or any portion thereof into Property that is
used or useful in a Permitted Business as contemplated by clause (v) of Section
4.10(a) hereof, such Trust Moneys may be withdrawn by the Company to enable such
reinvestment, upon receipt by the Trustee of the following:
(a) an Officers' Certificate dated not more than 30 days prior
to the date of the application for the withdrawal and payment of such
Trust Moneys, setting forth:
(i) that expenditures have been made, or costs
incurred, or will be incurred simultaneously with such
withdrawal of Trust Moneys, by the Company or a Restricted
Subsidiary thereof in a specified amount for the purpose of
acquiring such Property, which shall be briefly described, and
stating the fair value thereof to the Company at the date of
the acquisition thereof by the Company or such Subsidiary;
(ii) that no part of such expenditures, in any
previous or then pending application, has been or is being
made the basis for the withdrawal of any Trust Moneys pursuant
to this Section 9.04;
(iii) that the Property to be acquired is necessary
or desirable in the conduct of the Company's or Subsidiary's
business;
(iv) that no Default or Event of Default shall have
occurred and be continuing; and
(v) that all conditions precedent herein provided
for relating to such withdrawal and payment have been complied
with; and
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(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are
therewith delivered to the Trustee conform to the applicable
requirements of this Indenture and the Security Documents, and
that, upon the basis of such request by the Company and the
accompanying documents specified in this Section 9.04, all
conditions precedent herein provided for relating to such
withdrawal and payment have been complied with;
(ii) that the Company or the applicable Subsidiary
has acquired or, upon payment of the costs to be paid will
acquire, title to such Property at least equivalent to its
title to the Property that was the subject of such Asset Sale;
and
(iii) that all the Company's or the applicable
Subsidiary's right, title and interest in and to said Property
are then subject to the Lien of this Indenture and the
Security Documents to the same extent as the Property that was
the subject of such Asset Sale.
Upon compliance with the foregoing provisions of this Section
9.04, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the
character aforesaid equal to the amount of the expenditures or costs stated in
the Officers' Certificate delivered pursuant to Section 9.04(a) hereof, or the
fair value to the Company or the applicable Credit Party of such Property stated
in such Officers' Certificate, whichever is less.
The foregoing provisions are subject to compliance with the
other terms of this Indenture, including the applicable redemption, purchase and
other requirements of Sections 3.08 and 4.10 hereof.
SECTION 9.05. Powers Exercisable Notwithstanding Event of
Default.
In case a Default or an Event of Default shall have occurred
and shall be continuing, the Credit Parties, while in possession of the
Collateral (other than Cash Collateral, Possessory Collateral and other Property
held by, or required to be deposited or pledged with, the Trustee hereunder or
under the Security Documents), may do any of the things enumerated in Sections
9.02 through 9.04 hereof if the Holders of a majority in aggregate principal
amount of the outstanding Notes, by appropriate action of such Holders, shall
consent to such action, in which event any certificate filed under any of such
Sections shall omit the statement to the effect that no Default or Event of
Default has occurred and is continuing. This Section 9.05 shall not apply,
however, during the continuance of an Event of Default of the type specified in
Section 7.01(i) or (j) hereof.
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SECTION 9.06. Powers Exercisable by Trustee or Receiver.
In case the Collateral (other than any Cash Collateral,
Possessory Collateral and other Property held by, or required to be deposited or
pledged with, the Trustee hereunder or under the Security Documents) shall be in
the possession of a receiver or trustee lawfully appointed, the powers
hereinbefore in this Article IX conferred upon the Credit Parties with respect
to the withdrawal or application of Trust Moneys may be exercised by such
receiver or trustee, in which case a certificate signed by such receiver or
trustee shall be deemed the equivalent of any Officers' Certificate required by
this Article IX. If the Trustee shall be in possession of any of the Collateral
hereunder or under the Security Documents, such powers may be exercised by the
Trustee in its discretion (it being understood that the Trustee shall have no
obligation to exercise such powers).
SECTION 9.07. Disposition of Notes Retired.
All Notes received by the Trustee and for whose purchase Trust
Moneys are applied under this Article IX, if not otherwise cancelled, shall be
promptly cancelled and disposed of by the Trustee pursuant to Section 2.09
hereof.
SECTION 9.08. Investment and Use of Trust Moneys.
(a) Investment of Trust Moneys. All or any part of any Trust
Moneys held by the Trustee hereunder shall from time to time be invested by the
Trustee, upon the specific instructions of the Company, in Qualified Cash
Equivalents, and any interest on such investments which may be received by the
Trustee shall be retained by the Trustee as Trust Moneys. Such deposits shall be
held by the Trustee as a part of the Collateral, subject to the same provisions
hereof. The Trustee shall not be liable or responsible for any loss resulting
from such deposits except only for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misconduct in complying with
this Section 9.08.
(b) Application by Trustee of Trust Moneys. If the Company shall
fail to perform any of its covenants in this Indenture or under any Security
Document, the Trustee may (but shall not be required to) at any time and from
time to time, use, apply and advance any Trust Moneys held by it under this
Article IX or make advances to effect performance of any such covenant on behalf
of the Company as contemplated by this Indenture or the Security Documents,
provided that (i) the Trustee shall not be required to make any such advances
from its own funds and (ii) all moneys so used or advanced by the Trustee,
together (in the case of funds advanced by the Trustee) with interest at the
rate borne by the Notes shall be repaid by the Issuer upon demand and shall be
entitled to the benefit of the Liens of the Security Documents. For repayment of
all such advances the Trustee shall have the right to use and apply any Trust
Moneys at any time held by it under this Article IX but no such use of Trust
Moneys or advance shall relieve the Issuer from any Default or Event of Default.
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ARTICLE X Amendments, Supplements and Waivers
SECTION 10.01. Without Consent of Holders.
The Credit Parties, when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture, the Notes or the Security
Documents without notice to or the consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency
in this Indenture or any Security Document, provided that such
amendments or supplements shall not adversely affect the interests of
the Holders in any material respect;
(ii) to comply with Article V hereof;
(iii) through the execution and delivery one or more Guarantee
Supplements;
(iv) to provide additional security for the Notes;
(v) to add to the covenants of the Credit Parties for the
benefit of the Holders or to surrender any right or power conferred
upon the Credit Parties;
(vi) to make any change that does not adversely affect the
rights of any Holder of the Notes;
(vii) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(viii) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee in accordance with the terms of this
Indenture; or
(ix) to correct or amplify the description of any Property at
any time subject to the Lien of this Indenture or the Security
Documents, or to subject additional Property to the Lien of this
Indenture or the Security Documents.
After an amendment, supplement or waiver under this Section 10.01
becomes effective, the Issuer shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Issuer shall
mail copies of any such amendment, supplement or waiver to Holders upon request.
Any failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
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SECTION 10.02. Consent of Holders.
(a) Consent by Majority Holders. Without prior notice to the
Holders, the Credit Parties, when authorized by their respective Board of
Directors (as evidenced by a Board Resolution), and the Trustee may amend this
Indenture, the Notes or the Security Documents with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding, and the Holders of at least a majority of the principal amount
of the Notes then outstanding by written notice to the Trustee may waive future
compliance by any Credit Party with any provision of this Indenture, the Notes
or the Security Documents, provided that the Holders of at least 85% in
aggregate principal amount of the Notes then outstanding shall be required to
release any substantial portion of Collateral from the Lien of this Indenture
and the Security Documents. Each Holder, upon delivery of any consent to the
Trustee hereunder, shall deliver an Officers' Certificate to the effect that
such Holder, together with its Affiliates, does not hold more than 15% of the
aggregate outstanding principal amount of the Notes; provided, that the consent
of the Holders shall not be required for any amendment, modification or
supplement of this Indenture or any Security Document solely (i) in order to
effectuate the subordination of the Lien of this Indenture and the Security
Documents to any Lien securing the Working Capital Facility as contemplated by
Section 6.04 hereof or (ii) in connection with the release by the Trustee of any
Lien upon any Property of the Company or any Subsidiary that is the subject of a
sale or other disposition permitted hereunder, to the extent such release is
required pursuant to Section 6.05 hereof.
(b) Consent by Each Holder. Notwithstanding the provisions of
paragraph (a) of this Section 10.02, without the consent of each Holder
affected, an amendment or waiver, including a waiver pursuant to Section 7.04
hereof, may not:
(i) reduce the amount of Notes whose Holders must consent to an
amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal of or extend the Stated Maturity of
any Note;
(iv) change any place of payment where, or the currency in
which, any Note or the interest thereon is payable;
(v) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes;
(vi) make any change in the amendment provisions or in the
waiver provisions of this Indenture (including the provisions of this
Article X and
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Section 7.02 hereof) which require the consent of Holders of all or a
specified percentage in principal amount of outstanding Notes;
(vii) change the time at which any Note may be redeemed pursuant
to Article III hereof; or
(viii) amend the provisions of Section 3.08, 3.09, 4.10 or 4.15
hereof.
(c) Form of Consents. It shall not be necessary for the
consent of the Holders under this Section 10.02 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
(d) Notice of Amendment. After an amendment, supplement or
waiver under this Section 10.02 becomes effective, the Issuer shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. The Issuer shall mail copies of any such amendment, supplement or
waiver to Holders upon request. Any failure of the Issuer to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
SECTION 10.03. Revocation and Effect of Consent.
(a) Notice of Revocation. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
(b) Record Dates. The Issuer may, but shall not be obligated
to, fix a Record Date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver. If a Record Date is fixed, then,
notwithstanding the last two sentences of the immediately preceding paragraph,
those Persons who were Holders at such Record Date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such Record Date. No such consent
shall be valid or effective for more than 90 days after such Record Date.
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SECTION 10.04. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Note thereafter authenticated. Alternatively, if the Issuer or the Trustee
so determines, the Issuer in exchange for a Note shall issue, and the Trustee
shall authenticate, a new Note that reflects the changed terms.
SECTION 10.05. Trustee to Sign Amendments, Etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel (at
the cost and expense of the Issuer) meeting the requirements of Sections 12.03
and 12.04 hereof and stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article X is authorized or permitted by this
Indenture and that all conditions precedent have been satisfied. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 10.06. Conformity with Trust Indenture Act.
Every amendment, supplement and waiver executed pursuant to this
Article X shall conform to the requirements of the TIA as then in effect.
SECTION 10.07. Amendments to Security Documents.
Except as otherwise provided in Sections 10.01 and 10.02 hereof,
the Credit Parties shall not amend, modify or supplement, or permit or consent
to any amendment, modification or supplement of, this Indenture, the Notes or
the Security Documents.
ARTICLE XI NOTE Guarantee
SECTION 11.01. Note Guarantee.
Subject to this Article XI, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes, the Security Documents or the obligations of the Issuer
hereunder or thereunder, that: (a) the principal of and interest on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be
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promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The obligations of the Guarantors under this Article XI are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Issuer under this Indenture, the Notes or the Security Documents, or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Article XI that the obligations of the Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of the Guarantors hereunder, which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Indenture, the Notes or the Security Documents, or any other
agreement or instrument referred to herein or therein shall be done or
omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Indenture, the Notes or the Security Documents, or any other agreement
or instrument referred to herein or therein, shall be waived or any
other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any Lien granted to, or in favor of, the Trustee as
security for any of the Guaranteed Obligations (including pursuant to
any of the Security Documents) shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Trustee or any
Holder exhaust any right, power or remedy or proceed against the Issuer under
this Indenture, the Notes or the Security Documents, or any other agreement or
instrument referred to herein
Indenture
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or therein, or against any other Person (including any other Guarantor
hereunder) under any other guarantee of, or security for, any of the Guaranteed
Obligations.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VII
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VII hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee.
SECTION 11.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to any this Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under its Note Guarantee and this Article
XI shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
this Article XI, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 11.03. Rights of Contribution.
The Guarantors hereby agree, as between themselves, that if
any Guarantor shall become an Excess Funding Guarantor (as defined below) by
reason of the payment by such Guarantor of any Guaranteed Obligations, each
other Guarantor shall, on demand of such Excess Funding Guarantor (but subject
to the next sentence), pay to such Excess Funding Guarantor an amount equal to
such Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the Property, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment
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(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Guarantor to any Excess Funding Guarantor under this Section
11.03 shall be subordinate and subject in right of payment to the prior payment
in full of the obligations of such Guarantor under the other provisions of this
Article XI and such Excess Funding Guarantor shall not exercise any right or
remedy with respect to such excess until payment and satisfaction in full of all
of such obligations.
For purposes of this Section 11.03, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Guarantor,
the ratio (expressed as a percentage) of (x) the amount by which the aggregate
present fair saleable value of all Property of such Guarantor (excluding any
shares of stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (y) the amount by which the aggregate fair saleable value
of all Property of all of the Guarantors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Issuer and the Guarantors
hereunder and under the Security Documents) of all of the Guarantors, determined
(A) with respect to any Guarantor that is a party hereto on the date hereof, as
of the Issue Date, and (B) with respect to any other Guarantor, as of the date
such Guarantor becomes a Guarantor hereunder.
ARTICLE XII Miscellaneous
SECTION 12.01. Trust Indenture Act of 1939.
This Indenture shall be subject to the provisions of the TIA
that are required to be a part of this Indenture and shall, to the extent
applicable, incorporate and be governed by such provisions.
SECTION 12.02. Notices.
(a) Addresses for Notices. Any notice or communication shall
be sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Issuer or any Guarantor:
[to be provided]
Attention: [to be provided]
Facsimile: [to be provided]
Indenture
-99-
if to the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
Corporate Trust
South Street and ▇▇▇▇▇▇▇▇ Avenue
MAC N 9303-120
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Facsimile: [to be provided]
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(b) Mailing of Notices. Any notice or communication mailed to
a Holder shall be mailed to him/her at his/her address as it appears on the Note
Register by first class mail and shall be sufficiently given to him/her if so
mailed within the time prescribed. Copies of any such communication or notice to
a Holder shall also be mailed to the Trustee and each Agent at the same time.
(c) Effectiveness of Notices. 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. Except for a notice to the Trustee, which is
deemed given only when received, and except as otherwise provided in this
Indenture, if a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
(d) Waiver of Notice Requirements. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
(e) Alternative Methods of Notification. In case by reason of
the suspension of regular mail service or by reason of any other cause it shall
be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Indenture
-100-
SECTION 12.03. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Issuer to the Trustee
to take any action under this Indenture, the Issuer shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
The Credit Parties shall otherwise comply with Section 314(c)
of the TIA.
SECTION 12.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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 statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of such person, he/she
has made such examination or investigation as is necessary to enable
him/her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such
other opinions as the Trustee may reasonably request.
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 12.06. Payment Date Other Than a Business Day.
If an Interest Payment Date, redemption date, Change of
Control Payment Date, Excess Proceeds Payment Date or Stated Maturity or date of
maturity of any Note shall not be a Business Day at any place of payment, then
payment of principal of or
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interest on such Note, as the case may be, need not be made on such date, but
may be made on the next succeeding Business Day at such place of payment with
the same force and effect as if made on the Interest Payment Date, Change in
Control Payment Date, Purchase Date, or redemption date, or at the Stated
Maturity or date of maturity of such Note, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Change in
Control Payment Date, Purchase Date, redemption date, Stated Maturity or date of
maturity, as the case may be.
SECTION 12.07. Governing Law.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE,
THE NOTES AND, TO THE EXTENT PROVIDED THEREIN, THE SECURITY DOCUMENTS, IN EACH
CASE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 12.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.09. No Recourse Against Others.
Except for the Note Guarantee provided for in Article XI
hereof, no director, officer, employee, incorporator or shareholder of the
Issuer shall have any liability for any obligations of the Issuer under the
Notes or this Indenture or the Security Documents or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator or stockholder of any of the Guarantors shall
have any liability for any obligations of the Guarantors under the Note
Guarantees, this Indenture or the Security Documents or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder,
by accepting Notes, waives and releases all such liabilities. Such waiver and
release are part of the consideration for the issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
SECTION 12.10. Successors.
All agreements of the Issuer and the Guarantors in this
Indenture and the Notes shall bind its successors by way of merger, amalgamation
or otherwise. All agreements of the Trustee in this Indenture shall bind its
successor.
Indenture
-102-
SECTION 12.11. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
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. Qualification of Indenture.
The Issuer shall qualify this Indenture under the TIA and
shall pay all reasonable costs and expenses (including attorneys' fees for the
Issuer, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and printing this Indenture. The Trustee shall be entitled to receive
from the Issuer any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
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 hereof and shall in no way
modify or restrict any of the terms and provisions hereof.
SECTION 12.15. Consent to Jurisdiction.
Each Credit Party hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in New
York City and any appellate court from any thereof for the purposes of (and
solely for the purposes of) any suit, action or other proceeding arising out of
or relating to this Indenture or any of the transactions contemplated hereby,
and each Credit Party hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such New York State
court or in such Federal court. Each Credit Party hereby (to the fullest extent
it may effectively do so) irrevocably waives and agrees not to assert, by way of
motion, as a defense, or otherwise in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason whatsoever, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper, or that this Indenture or the subject matter hereof may
not be enforced in such courts. Each Credit Party hereby irrevocably appoints
the Issuer as its agent to receive on behalf of such Credit Party and its
Property service of copies of the summons and complaint and any other process
which may be served in any such suit, action or proceeding and in any suit,
action or proceeding arising out of or relating to this Indenture to which such
Credit Party is a party. Such
Indenture
-103-
service may be made by mailing or delivering a copy of such process to a Credit
Party in care of the Issuer in the manner provided in this Indenture, and each
Credit Party hereby irrevocably authorize and direct the Issuer to accept such
service on its behalf. As an alternative method of service, each Credit Party
also irrevocably consents to the service of any and all process in any such
suit, action or proceeding by the mailing of copies of such process to such
Credit Party at its address specified in Section 12.02 hereof. Each Credit Party
agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section 12.15 shall affect
the right of the Trustee to serve legal process in any other manner permitted by
law or affect the right of the Trustee to bring any action or proceeding against
any Credit Party or its Property in the courts of any other jurisdictions.
SECTION 12.16. Waiver of Jury Trial.
EACH OF THE OBLIGORS AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12.17. Judgment Currency.
The Issuer shall indemnify each Holder against any loss
incurred by such Holder as a result of any judgment or order being given or made
for any amount due under the Notes 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 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 the spot rate of exchange in The
City of New York at which such Holder 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 Holder. The foregoing indemnity shall
constitute a separate and independent obligation of the Issuer and 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
-104-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
ISSUER
GLOBAL CROSSING NORTH AMERICA, INC.
By: ________________________________
Name:
Title:
GUARANTORS
[NAME OF NEW GLOBAL CROSSING
HOLDING COMPANY]
By: ________________________________
Name:
Title:
Indenture
-105-
ALC COMMUNICATIONS AMERITEL MANAGEMENT INC.
By __________________________________ By ________________________________
Name: Name:
Title: Title:
ATLANTIC CROSSING HOLDINGS LTD. ATLANTIC CROSSING HOLDINGS U.K.
LIMITED
By __________________________________ By ________________________________
Name: Name:
Title: Title:
ATLANTIC CROSSING II LTD. ATLANTIC CROSSING LTD.
By __________________________________ By ________________________________
Name: Name:
Title: Title:
BUDGET CALL LONG DISTANCE, INC. BUSINESS TELEMANAGEMENT, INC.
By __________________________________ By ________________________________
Name: Name:
Title: Title:
GC DEV. CO. INC. GC HOLDING SPV
By __________________________________ By ________________________________
Name: Name:
Title: Title:
Indenture
-106-
GC HUNGARY HOLDINGS GC LANDING CO. GMBH
VAGYONKEZELO KFT
By ____________________________________ By _________________________________
Name: Name:
Title: Title:
GC PACIFIC LANDING CORP. GC PAN EUROPEAN CROSSING
ITALIA S.R.L.
By ____________________________________ By _________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING CZECH
BELGIE B.V.B.A.
By ____________________________________ By _________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
DANMARK A.P.S. DEUTSCHLAND GMBH
By ____________________________________ By _________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
ESPANA S.L. FRANCE S.A.R.L.
By ____________________________________ By _________________________________
Name: Name:
Title: Title:
Indenture
-107-
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
HOLDINGS B.V. LUXEMBOURG I S.A.R.L.
By _________________________________ By ________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
LUXEMBOURG II S.A.R.L. NETWORKS BV
By _________________________________ By ________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
NORGE AS OSTERREICH GMBH
By _________________________________ By ________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING GC PAN EUROPEAN CROSSING
SVERIGE AB SWITZERLAND GMBH
By _________________________________ By ________________________________
Name: Name:
Title: Title:
GC PAN EUROPEAN CROSSING UK LTD. GC PAN EUROPEAN NEDERLAND B.V.
By _________________________________ By ________________________________
Name: Name:
Title: Title:
Indenture
-108-
GC SAC ARGENTINA S.R.L. GC ST. CROIX CO.
By __________________________________ By ________________________________
Name: Name:
Title: Title:
GC UK HOLDING LIMITED GEOCONFERENCE LIMITED
By __________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING GLOBAL CROSSING (BIDCO) LIMITED
DEUTSCHLAND GMBH
By __________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING (HOLDCO) LIMITED GLOBAL CROSSING (UK) INTERNET
SERVICES LIMITED
By __________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING (UK) GLOBAL CROSSING (UK)
TELECOMMUNICATIONS LIMITED TELECOMMUNICATIONS NETWORKS
LIMITED
By __________________________________ By ________________________________
Name: Name:
Title: Title:
Indenture
-109-
GLOBAL CROSSING ADVANCED CARD GLOBAL CROSSING BANDWIDTH, INC.
SERVICES, INC.
By __________________________________ By __________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING BILLING, INC. GLOBAL CROSSING COMMUNICATIONS
INTERNATIONAL LIMITED
By __________________________________ By __________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING CONFERENCING GLOBAL CROSSING CONFERENCING
LIMITED -CANADA, LTD.
By __________________________________ By __________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING CYPRUS GLOBAL CROSSING DEVELOPMENT CO.
HOLDINGS LIMITED
By __________________________________ By __________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING EMPLOYEE GLOBAL CROSSING EUROPE LTD.
SERVICES INC.
By __________________________________ By __________________________________
Name: Name:
Title: Title:
Indenture
-110-
GLOBAL CROSSING FRANCE SAS GLOBAL CROSSING GLOBALCENTER
HOLDINGS, INC.
By _________________________________ By _________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING HOLDINGS II LTD. GLOBAL CROSSING HOLDINGS LTD.
By _________________________________ By _________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING HOLDINGS GLOBAL CROSSING HOLDINGS USA LLC
UK LIMITED
By _________________________________ By _________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING INTERMEDIATE GLOBAL CROSSING
UK HOLDINGS LTD. INTERNATIONAL, LTD.
By _________________________________ By _________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING INTERNET GLOBAL CROSSING IRELAND, LIMITED
DIAL-UP INC.
By _________________________________ By _________________________________
Name: Name:
Title: Title:
Indenture
-111-
GLOBAL CROSSING IXNET EMEA GLOBAL CROSSING LATIN AMERICA &
HOLDINGS LIMITED, UK CARIBBEAN CO.
By ________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING LOCAL GLOBAL CROSSING LTD.
SERVICES, INC.
By ________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING MEXICANA S. GLOBAL CROSSING NEDERLAND B.V.
DE ▇.▇. DE C.V.
By ________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING NETWORK GLOBAL CROSSING NETWORK
CENTER (UK) LTD. CENTER LTD.
By ________________________________ By ________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING NORTH GLOBAL CROSSING NORTH AMERICAN
AMERICA, INC. HOLDINGS, INC.
By ________________________________ By ________________________________
Name: Name:
Title: Title:
Indenture
-112-
GLOBAL CROSSING NORTH AMERICAN GLOBAL CROSSING PANAMA INC.
NETWORKS, INC.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING PORTFOLIO GLOBAL CROSSING SERVICES
HOLDINGS LTD. EUROPE, LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING SERVICES GLOBAL CROSSING SPV IRELAND
IRELAND LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING GLOBAL CROSSING
SWITZERLAND GMBH TELECOMMUNICATIONS- CANADA,
LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING GLOBAL CROSSING
TELECOMMUNICATIONS INC. TELEMANAGEMENT, INC.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-113-
GLOBAL CROSSING USA INC. GLOBAL CROSSING VENEZUELA B.V.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL CROSSING WORLDWIDE GLOBAL MARINE CABLE SYSTEMS
CUSTOMER HELP DESK CANADA, LTD. PTE LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL MARINE HOLDINGS, GLOBAL MARINE SYSTEMS
BERMUDA LTD. (AMERICAS) INC.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL MARINE SYSTEMS GLOBAL MARINE SYSTEMS (DEPOTS)
(BERMUDA) LTD. LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL MARINE SYSTEMS GLOBAL MARINE SYSTEMS
(FEDERAL) INC. (GUERNSEY) LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-114-
GLOBAL MARINE SYSTEMS GLOBAL MARINE SYSTEMS
(INVESTMENTS) LIMITED (JAPAN) LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GLOBAL MARINE SYSTEMS LIMITED GLOBAL MARINE SYSTEMS PENSION
TRUSTEE LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GMS GUERNSEY PENSION TRUSTEE GT LANDING CORP.
LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GT LANDING II CORP. GT NETHERLANDS B.V.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
GT U.K. LTD. HARMSTROF SUBMARINE
SYSTEMS SDN BHD
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-115-
INTERNATIONAL CABLESHIP INTERNATIONAL EXCHANGE
PTE LIMITED NETWORK SAS
By_____________________________________ By________________________________
Name: Name:
Title: Title:
ION LLC ION LTD
By_____________________________________ By________________________________
Name: Name:
Title: Title:
IXNET UK LIMITED IXNET, INC.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
MAC LANDING CORP. MID-ATLANTIC CROSSING
HOLDINGS LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
MID-ATLANTIC CROSSING MID-ATLANTIC CROSSING LTD.
HOLDINGS UK LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
NTT WORLD ENGINEERING PAC LANDING CORP.
MARINE CORP.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-116-
PAC PANAMA LTD. PAN AMERICAN CROSSING
HOLDINGS LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
PAN AMERICAN CROSSING LTD. PAN AMERICAN CROSSING UK LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
PT MACASER INDONESIA RACAL TELECOMMUNICATIONS
By_____________________________________ By________________________________
Name: Name:
Title: Title:
SAC BRASIL HOLDING LTD. SAC BRASIL LTDA.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
SAC CHILE S.A. SAC COLUMBIA LIMITIDA
By_____________________________________ By________________________________
Name: Name:
Title: Title:
SAC PANAMA S.A. SAC PERU S.R.L.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-117-
SEMBAWANG CABLE DEPOT SOUTH AMERICAN CROSSING
PLC LIMITED HOLDINGS LTD.
By_____________________________________ By________________________________
Name: Name:
Title: Title:
SOUTH AMERICAN CROSSING LTD. SUBSERV LIMITED
By_____________________________________ By________________________________
Name: Name:
Title: Title:
SUBSERV PRO LIMITED SUBSIDIARY TELCO, LLC
By_____________________________________ By________________________________
Name: Name:
Title: Title:
US CROSSING INC. VIBRO EINSPULTECHNIK ▇▇▇▇▇ UND
WASSERBRAU GMBH
By_____________________________________ By________________________________
Name: Name:
Title: Title:
Indenture
-118-
TRUSTEE
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Name:
Title:
Indenture
EXHIBIT A
[Form of Note]
(Face of Note)
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING SET FORTH IN
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY, OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED, IF IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND, IF IN PART, TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
CUSIP No.
REGISTERED ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇:
$
GLOBAL CROSSING NORTH AMERICA
11% SENIOR SECURED NOTES DUE ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, a corporation duly organized and
validly existing under the laws of the State of New York (herein called the
"Issuer"), for value received, hereby promises to pay to __________ or
registered assigns, the principal sum of [AMOUNT IN WORDS] ($_________) on
_________, 2006, and to pay interest thereon from the date of issuance of this
Note or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually in arrears on _________ and _________ in
each year, commencing _________, 2003, at a rate per annum provided in the title
hereof until the principal
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hereof is paid or made available for payment, and, to the extent lawful, at the
rate equal to 1% per annum in excess of the interest rate then applicable to the
Notes on any overdue principal, and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date which shall be the _________ or _________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date; provided that interest payable on the Stated Maturity
shall be payable to the Person in whose name this Note (or one or more
predecessor Notes) is registered on the day (whether or not a Business Day)
immediately preceding such date. Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be paid
on the payment date fixed therefore by the Issuer to the Person in whose name
this Note is registered on a special record date for the payment of such
defaulted interest to be fixed by the Issuer, notice whereof shall be mailed to
each Holder at least fifteen days before the subsequent special record date.
The Indenture provides for the Guarantee of the Obligations of
the Issuer under the Indenture and in respect of the Notes by all of the
Material Subsidiaries of the Company (other than by the Issuer itself). In
addition, the Indenture and related Security Documents provide that the
obligations of the Issuer and the Guarantors under and in respect of the
Indenture, the Notes and the Security Documents shall be entitled to the benefit
of Liens on all of the Property of the Credit Parties granted to the Trustee for
the benefit of itself and the Holders. Except for the Senior Collateral referred
to in the Indenture, such Liens in favor of the Trustee are subordinated in
priority to any Liens securing obligations in respect of the Working Capital
Facility referred to in the Indenture.
Payment of the principal of and interest (including defaulted
interest) on this Note will be made at an office or agency of the Issuer
maintained for such purpose in the Borough of Manhattan, the City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided that
at the option of the Issuer, payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Note Register (other than if this Note is a Global Note, in which case payment
of interest shall be made by wire transfer of funds to the registered holder
hereof).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, directly or through a
duly appointed and authorized authenticating agent, by manual or facsimile
signature of an authorized signatory, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated: _______________
GLOBAL CROSSING NORTH AMERICA
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
[NAME OF TRUSTEE],
as Trustee
Dated: _______________
By:______________________
Name:
Title:
Note
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(Back of Note)
11% Senior Secured Notes due 2006
This Note is one of a duly authorized issue of securities of
the Issuer issued and to be issued under an Indenture dated as of ________, 2003
(herein called the "Indenture") by and between the Issuer, [Name of New Global
Crossing Holding Company], a company duly organized and validly existing under
the laws of Bermuda (the "Company"), the other entities identified on the
signature pages thereto under the caption "GUARANTORS" (the Company together
with such other entities, and any entity that shall become a Guarantor
thereunder pursuant to Section 4.18 thereof, being herein called the
"Guarantors" and, together with the Issuer, the "Credit Parties") and [NAME OF
TRUSTEE], as Trustee (herein called the "Trustee"), to which Indenture and all
indentures and guarantees supplemental thereto reference is hereby made for a
statement of the respective rights, limitation of rights, duties and immunities
thereunder of the Credit Parties, the Trustee and the Holders of the Notes and
of the terms upon which the Notes are, and are to be, authenticated and
delivered. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Issuer limited to $200,000,000 in
aggregate principal amount.
The terms of this Note include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended, except as otherwise provided therein. All terms used in this
Note which are defined in the Indenture shall have the meanings assigned to them
in the Indenture.
1. Interest.
Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Paying Agent and Registrar.
Initially, the Trustee shall act as Paying Agent and Registrar
(each, herein called an "Agent"). The Issuer may remove any Agent upon written
notice to such Agent and the Trustee. None of the Company, any Subsidiary of the
Company or any Affiliate of any of them may act as Paying Agent, Registrar or
co-registrar.
3. Payment of Additional Amounts.
If any deduction or withholding for any present or future
taxes, assessments or other governmental charges of (x) the jurisdiction in
which the Issuer is organized or any political subdivision or governmental
authority thereof or therein having power to tax or (y) any jurisdiction from or
through which payment on the Notes is made by the Issuer or its paying agent in
its capacity as such or any political subdivision or governmental authority
thereof or therein having the power to tax shall at any time be required by such
jurisdiction (or any such
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political subdivision or taxing authority) in respect of any amounts to be paid
by the Issuer under the Notes, the Issuer shall, in the manner and to the extent
provided in Section 3.08 of the Indenture (and subject to the exclusions set
forth therein) pay to each Holder of Notes as additional interest, such
additional amounts as may be necessary in order that the net amounts paid to
such holder of such Notes, after such deduction or withholding, shall be not
less than the amount specified in such Notes to which such Holder is entitled.
4. Optional Redemption.
The Issuer may at any time, and from time to time, at its
option, redeem the Notes in whole or in part, in a minimum aggregate redemption
amount of $________, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to, the applicable redemption date (subject to the
right of Holders of records on the relevant record date to receive interest due
on the relevant interest payment date). Any such redemption shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
5. Mandatory Redemption.
Except as provided in Section 3.08(b) of the Indenture, in the
event of one or more Specified Subsidiary Asset Sales, the Company shall, upon
receipt by the Company or the applicable Subsidiary of the Net Cash Proceeds of
such Specified Subsidiary Asset Sales, deposit, or cause to be deposited, the
entire amount of such Net Cash Proceeds into the Specified Subsidiary Asset Sale
Proceeds Account and, upon not less than 30 nor more than 60 days' notice (but
in no event more than 70 days after such Specified Subsidiary Asset Sale), cause
the Issuer to use such Net Cash Proceeds to redeem the Notes at a redemption
price of 100% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, 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). Amounts so deposited into the Specified
Subsidiary Asset Sale Proceeds Account may not be withdrawn except to effect
such redemption as provided in the Indenture. Any such redemption shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
Section 4.10(b) of the Indenture provides that, following
certain Specified Subsidiary Casualty Events, and subject to the limitations of
Section 4.10(b) of the Indenture, the Net Cash Proceeds from such Specified
Subsidiary Casualty Events shall be applied as if such Net Cash Proceeds
constituted proceeds of a Specified Subsidiary Asset Sale.
6. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Issuer shall mail of cause to the mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address. Any notice of redemption shall be made pursuant to the
provisions of Section 3.03 of the Indenture.
Note
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7. Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the Issuer shall
issue and, upon the Issuer's written request, the Trustee shall authenticate for
the Holder at the expense of the Issuer a new Note or Notes equal in principal
amount to the unredeemed portion of the Note surrendered.
8. Repurchase at Option of Holder.
(a) Change of Control. As further described in Section 4.15 of the
Indenture, upon the occurrence of a Change of Control, each Holder of Notes
shall have the right to require the Issuer to repurchase all or any part of each
Holder's Notes pursuant to a Change of Control Offer at a purchase price in cash
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase (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 Issuer shall not be
obligated to repurchase Notes as described in this subparagraph in the event
that it has exercised its rights to redeem all of the Notes as described in
Section 4 hereof.
(b) Asset Sale Offer. As further described in Section 4.10 of the
Indenture, in connection with any Asset Sale, when the aggregate amount of
Excess Proceeds equals or exceeds $________ million (taking into account income
earned on such Excess Proceeds), the Issuer shall be required to make an Asset
Sale Offer to purchase the maximum principal amount of Notes 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, plus accrued and unpaid interest
thereon, if any, to the date of purchase, in accordance with the procedures set
forth in Article III of the Indenture. 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 tendered into such Asset Sale Offer
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. 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.
9. Denominations, Transfer, Exchange.
The Notes are issuable only in fully registered form, without coupons,
in minimum denominations of $________. The transfer and exchange of this Notes,
or beneficial interests herein, shall be effected in accordance with the
provisions of Section 2.05 of the Indenture.
No service charge shall be made for any registration of transfer or
exchange; provided that, the Issuer may require a payment of a sum sufficient to
cover transfer tax, assessments, or similar governmental charge payable in
connection therewith.
Note
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10. Persons Deemed Owners
Prior to due presentment for the registration of a transfer of any
Note, the Issuer, the Trustee and any Agent 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 Credit Parties, the Trustee or any Agent
shall be affected by notice to the contrary.
11. Acceleration
If any Event of Default with respect to outstanding Notes occurs and
is continuing, the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture.
12. Amendment, Modification and Waiver.
The Indenture permits, with certain exceptions as therein provided,
the amendment of the Indenture, this Note or the Security Documents and the
modification of the rights and obligations of the Credit Parties (and the rights
of the Holders) by the Credit Parties and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding. The Indenture also contains certain provisions permitting,
with certain exceptions as therein provided, the Holders of not less than a
majority in aggregate principal amount of the then outstanding Notes on behalf
of the Holders of all of the Notes to waive an existing Default or Event of
Default and it consequences under the Indenture. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of the Indenture and this Note,
but no waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
13. 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).
No reference herein to the Indenture and no provisions of this Note or
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note as
the times, place and rate, and in the coin or currency herein prescribed.
14. Governing Law.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THIS NOTE, THE INDENTURE
AND, TO THE EXTENT PROVIDED THEREIN, THE SECURITY DOCUMENTS, IN EACH CASE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE
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APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Global Crossing North America
[address to be provided]
Attention: [Secretary of the Company]
Note
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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 Issuer. The
agent may substitute another to act for him.
Dated:
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 equirements of
the Registrar, which requirements include membership
or articipation 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.
Note
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[_] Section 4.10 [_]Section 4.15
If you want to elect to have only part of the Note purchased by the
Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $________
Dated:
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 equirements of
the Registrar, which requirements include membership
or articipation 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.
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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:
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Principal
Amount of Amount of Amount of this Signature of
Decrease in Increase in Global Note Authorized
Principal Principal Following Such Officer or
Date of Amount of this Amount of this Decrease Trustee or Note
Exchange Global Note Global Note (or Increase) Custodian
-------- ----------- ----------- ------------- ---------
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_______________
/1/ This should be included only if the Note is issued in global form.
Note
EXHIBIT B
[Form of Guarantee Supplement]
GUARANTEE SUPPLEMENT
GUARANTEE SUPPLEMENT dated as of ________ __, ____ by [NAME OF
ADDITIONAL GUARANTOR], a ________ duly organized under and validly existing
under the laws of ___________ (the "Additional Guarantor"), in favor of [Name of
Trustee], as trustee (the "Trustee").
Pursuant to an Indenture dated as of ________, 2003 (the "Indenture")
between Global Crossing North America, a corporation duly organized and validly
existing under the laws of the State of New York (the "Issuer"), [Name of New
Global Crossing Holding Company], a company duly organized and validly existing
under the laws of Bermuda (the "Company"), and the other entities identified on
the signature pages thereto under the caption "GUARANTORS" (the Company together
with such other entities, and any entity that shall become a Guarantor
thereunder pursuant to Section 4.18 thereof, being herein called the
"Guarantors" and, together with the Issuer, the "Credit Parties") and the
Trustee, the Issuer has issued $200,000,000 of its 11% Senior Secured Notes due
2006 (the "Notes") and the Guarantors have unconditionally guaranteed all of the
obligations of the Issuer under and in respect of the Notes.
As required under Section 4.19 of the Indenture, the Additional
Guarantor hereby agrees to become a "Guarantor" and a "Credit Party" under and
for all purposes of the Indenture and the Security Agreement. Without limiting
the foregoing, the Additional Guarantor:
(a) hereby jointly and severally with the other Guarantors,
unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee, and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of the Indenture,
the Notes, the Security Document or the obligations of the Issuer
thereunder that: (i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the
Issuer to the Holders or the Trustee thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise;
Guarantee Supplement
-2-
(b) as collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations under and as defined in the Security Agreement, hereby pledges
and grants to the Trustee, for the benefit of the Trustee and the Holders,
a security interest in and to all of the Additional Guarantor's right,
title and interest in any Collateral whether now owned by the Additional
Guarantor or hereafter acquired and whether now existing or hereafter
coming into existence;
(c) hereby makes the representations and warranties set forth in
Section 2 of the Security Agreement, and agrees that each of the Annexes to
the Security Agreement shall be supplemented as provided in Appendix A
hereto;
(d) hereby agrees, with respect to any Collateral that may be located
outside of the United States (and if the Additional Guarantor is organized
or conducts business outside of the United States), to concurrently
herewith execute and deliver such additional security agreements, pledge
agreements, assignments, mortgages and other similar instruments or
documents as shall be necessary in order to create and perfect Liens upon
and other security interests in the Collateral owned by the Additional
Guarantor under the law of the jurisdiction in which such Collateral is
located or in which the Additional Guarantor is organized or conducts
business as more particularly provided in the last paragraph of Section 3
of the Security Agreement; and
(e) hereby agrees to execute and deliver the Opinions of Counsel and
other documents or instruments as required under Section 6.03(c) of the
Indenture.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THIS GUARANTEE
SUPPLEMENT, THE INDENTURE, THE NOTES AND, TO THE EXTENT PROVIDED THEREIN, THE
SECURITY DOCUMENTS, IN EACH CASE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Additional Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in New
York City and any appellate court from any thereof for the purposes of (and
solely for the purposes of) any suit, action or other proceeding arising out of
or relating to this Guarantee Supplement, the Indenture or any of the
transactions contemplated hereby, and Additional Guarantor hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York State court or in such Federal court. The Additional
Guarantor hereby (to the fullest extent it may effectively do so) irrevocably
waives and agrees not to assert, by way of motion, as a
Guarantee Supplement
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defense, or otherwise in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of the above-named courts for any
reason whatsoever, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper, or that this Guarantee Supplement or the Indenture or the subject
matter hereof or thereof may not be enforced in such courts. The Additional
Guarantor hereby irrevocably appoints CT Corporation System (the "Process
Agent"), with an office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its agent to receive on behalf of the Additional
Guarantor and its Property service of copies of the summons and complaint and
any other process which may be served in any such suit, action or proceeding and
in any suit, action or proceeding arising out of or relating to this Guarantee
Supplement or the Indenture to which the Additional Guarantor is a party. Such
service may be made by mailing or delivering a copy of such process to the
Additional Guarantor in care of the Process Agent at the Process Agent's above
address, and the Additional Guarantor hereby irrevocably authorize and direct
the Process Agent to accept such service on its behalf. As an alternative method
of service, the Additional Guarantor also irrevocably consents to the service of
any and all process in any such suit, action or proceeding by the mailing of
copies of such process to the Additional Guarantor at its address specified in
Section 12.02 of the Indenture. The Additional Guarantor agrees that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing herein shall affect the right of the Trustee to serve
legal process in any other manner permitted by law or affect the right of the
Trustee to bring any action or proceeding against the Additional Guarantor or
its Property in the courts of any other jurisdictions.
EACH OF THE ADDITIONAL GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTEE SUPPLEMENT OR THE INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
Guarantee Supplement
-4-
IN WITNESS WHEREOF, the Additional Guarantor has caused this Guarantee
Supplement to be duly executed and delivered as of the day and year first above
written.
[NAME OF ADDITIONAL GUARANTOR]
By_________________________
Name:
Title:
Accepted and agreed:
[NAME OF TRUSTEE], as Trustee
By_________________________
Name:
Title:
Guarantee Supplement
Appendix A
SUPPLEMENTS TO ANNEXES TO SECURITY AGREEMENT
Supplement to Annex 1:
[to be completed]
Supplement to Annex 2:
[to be completed]
Supplement to Annex 3:
[to be completed]
Supplement to Annex 4:
[to be completed]
Supplement to Annex 5:
[to be completed]
Supplement to Annex 6:
[to be completed]
Supplement to Annex 7:
[to be completed]
Supplement to Annex 8:
[to be completed]
Guarantee Supplement
EXHIBIT C
[Form of Intercreditor Agreement]
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of ________, 2003 between [NAME OF
TRUSTEE], as trustee under the below-referenced Indenture (together with its
successors in such capacity, the "Trustee"), and [NAME OF AGENT FOR WORKING
CAPITAL FACILITY], as agent under the below-referenced Working Capital Facility
(together with its successors in such capacity, the "Agent").
Pursuant to an Indenture dated as of ________, 2003 (the "Indenture")
between Global Crossing North America, a corporation duly organized and validly
existing under the laws of the State of New York (the "Issuer"), [Name of New
Global Crossing Holding Company], a company duly organized and validly existing
under the laws of Bermuda (the "Company"), the other entities identified on the
signature pages thereto under the caption "GUARANTORS" (the Company together
with such other entities, and any entity that shall become a Guarantor
thereunder pursuant to Section 4.18 thereof, being herein called the
"Guarantors" and, together with the Issuer, the "Credit Parties") and the
Trustee, the Issuer has issued $200,000,000 of its 11% Senior Secured Notes due
2006 (the "Notes") and the Guarantors have unconditionally guaranteed all of the
obligations of the Issuer under and in respect of the Notes. Pursuant to various
Security Documents (as defined in the Indenture and herein referred to as the
"Indenture Security Documents"), the Credit Parties have granted liens and
security interests on all of the Property (as hereinafter defined) of the Credit
Parties as collateral security for their respective obligations under and in
respect of the Indenture, the Notes and such Security Documents.
Pursuant to a [Describe Working Capital Facility Agreement] (the
"Working Capital Facility Agreement"), the lenders referred to therein have
agreed to extend credit to one or more of the Credit Parties (other than the
Specified Subsidiaries hereinafter referred to) in an aggregate amount up to but
not exceeding $____________ and one or more of the Credit Parties (other than
the Specified Subsidiaries) have unconditionally guaranteed all of the
obligations of the Credit Parties under and in respect of the Working Capital
Facility. Pursuant to various [Described Working Capital Facility Security
Documents] (as defined in the Working Capital Facility Agreement and herein
referred to as the "Working Capital Facility Security Documents"), the Credit
Parties (other than the Specified Subsidiaries) have granted liens and security
interests on certain of the Property of such Credit Parties as collateral
security for their respective obligations under and in respect of the Working
Capital Facility Agreement and the Working Capital Facility Security Documents.
In connection with the foregoing, the parties hereto wish to set forth
their agreement with respect to the priorities of certain liens and security
interests on the Property of
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the Credit Parties, the exercise of remedies with respect thereto, and various
other matters. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Asset Sale Proceeds Account" shall have the meaning assigned to such
term in the Indenture.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) 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 Property of, the issuing
Person.
"Cash Collateral" means any Shared Collateral consisting of cash, Cash
Equivalents (including Qualified Cash Equivalents) or any other security
entitlements (as defined in the Uniform Commercial Code), and any financial
assets (as so defined), and not constituting Possessory Collateral.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the government or any agency or instrumentality of the
United States, Bermuda, Switzerland or any member of the European Union
(provided that the full faith and credit of the United States, Bermuda,
Switzerland or any member of the European Union is pledged in support thereof),
having maturities of not more than 365 days from the date of acquisition, (b)
certificates of deposit and eurodollar time deposits with maturities of 90 days
or less from the date of acquisition, bankers' acceptances with maturities not
exceeding 90 days and overnight bank deposits, in each case with any commercial
bank organized under the law of the United States or any State thereof, Bermuda,
Switzerland or any member of the European Union having capital and surplus in
excess of $500,000,000 (or the equivalent thereof in any other currency), whose
long-term debt is rated A-3 or A- or higher or, with respect to Switzerland or
any country in the European Union, Aa2 or AA or higher according to Moody's or
S&P, and denominated in a freely-convertible currency, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in the preceding clauses (a) and (b) entered into with any
financial institution meeting the qualifications specified in the preceding
clause (b), (d) commercial paper having the highest rating obtainable from
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition, issued by a
corporation organized under the law of the United States or any State thereof,
Bermuda, Switzerland or any member of the European Union and denominated in any
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freely-convertible currency and (e) money market funds at least 95% of the
assets of which constitute Cash Equivalents of the types and maturities
described in the preceding clauses (a) through (c).
"Collateral" means, collectively, (a) all buildings, plants, network
facilities, structures, improvements and equipment of the Credit Parties and all
other Property of the Credit Parties, (b) all the issued and outstanding Equity
Interests held by the Credit Parties in any Subsidiaries of the Credit Parties,
(c) all cash held by the Trustee or the Agent pursuant to the Indenture or the
Working Capital Facility Agreement, (d) all other Property of the Credit Parties
enumerated under the Indenture Security Documents or the Working Capital
Facility Security Documents and (e) all proceeds of any of the foregoing
(including any proceeds of a sale of the foregoing).
"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).
"GCUK" means Global Crossing Intermediate UK Holdings Ltd. (UK), a
company organized under the laws of the England and Wales.
"Global Marine" means Global Marine Systems Limited, a company
organized under the laws of the England and Wales.
"Indenture" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Indenture Exclusive Collateral" means (a) all Equity Interests in
GCUK and Global Marine and their respective Subsidiaries, (b) all Property of
GCUK and Global Marine and their respective Subsidiaries, (c) any amounts
standing to the credit of the Specified Subsidiary Asset Sale Proceeds Account
or the Specified Subsidiary Casualty Event Proceeds Account and (d) all proceeds
of any of the foregoing (including any proceeds of a sale of the foregoing).
"Indenture Secured Obligations" means all obligations of the Credit
Parties to the Trustee and the Noteholders under and in respect of the
Indenture, the Notes and the Indenture Security Documents.
"Indenture Security Documents" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Lenders" means each of the lenders from time to time extending credit
to the Credit Parties under the Working Capital Facility.
"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,
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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).
"Noteholders" means each of the holders of Notes under the Indenture.
"Notes" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Opinion of Counsel" shall have the meaning assigned to such term in
the Indenture.
"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.
"Possessory Collateral" means any Shared Collateral consisting of a
security (as defined in the Uniform Commercial Code) evidenced by a security
certificate (as so defined), and any other Shared Collateral in which a Lien may
be perfected through physical possession by the secured party or any agent
therefor of an instrument or other document evidencing such Shared Collateral.
"Property" means any interest in any rights, assets or property of any
kind whatsoever (including all cash and Cash Equivalents, and all Equity
Interests), whether real, personal or mixed and whether tangible or intangible,
whether now existing or hereafter arising and wherever located.
"Qualified Cash Equivalents" means (a) U.S. Dollars, Euros or English
Pounds Sterling, (b) securities issued or directly and fully guaranteed or
insured by the government, or any agency or instrumentality, of the United
States, France, Germany or the United Kingdom (each, a "Qualified Country"),
provided that the full faith and credit of such Qualified Country is pledged in
support thereof, having maturities of not more than 90 days from the date of
acquisition, (c) certificates of deposit and eurodollar time deposits with
maturities of 90 days or less from the date of acquisition, bankers' acceptances
with maturities not exceeding 90 days and overnight bank deposits, in each case
with any commercial bank organized under the law of a Qualified Country, having
capital and surplus in excess of $500,000,000 (or the equivalent thereof in any
other currency), and whose long-term debt is rated A-3 or A- or higher or, with
respect to Switzerland or any country in the European Union, and Aa2 or AA or
higher according to Moody's or S&P, and denominated in U.S. Dollars, Euros or
English Pounds Sterling, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in the preceding
clauses (b) and (c) entered into with any financial institution meeting the
qualifications specified in the preceding clause (c), (e) commercial paper
having the highest rating obtainable from ▇▇▇▇▇'▇ Investors Service, Inc.
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or Standard & Poor's Corporation and in each case maturing within 90 days after
the date of acquisition, issued by a corporation organized under the law of a
Qualified Country and denominated in U.S. Dollars, Euros or English Pounds
Sterling and (f) money market funds at least 95% of the assets of which
constitute Qualified Cash Equivalents of the types and maturities described in
the preceding clauses (b) through (d).
"Shared Collateral" means all Collateral other than the Indenture
Exclusive Collateral.
"Specified Subsidiaries" means, collectively, GCUK, Global Marine and
their respective Subsidiaries.
"Specified Subsidiary Asset Sale Proceeds Account" shall have the
meaning assigned to such term in the Indenture.
"Specified Subsidiary Casualty Event Proceeds Account" shall have the
meaning assigned to such term in the Indenture.
"Subsidiary" means, with respect to any Person, (a) 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 (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"Working Capital Facility Agreement" shall have the meaning assigned
to such term in the preamble to this Agreement.
"Working Capital Facility Lender" means any lender extending credit to
the Credit Parties pursuant to the Working Capital Facility Agreement.
"Working Capital Facility Secured Obligations" means all obligations
of the Credit Parties to the Agent and the Lenders under and in respect of the
Working Capital Facility Agreement and the Working Capital Facility Security
Documents.
"Working Capital Facility Security Documents" shall have the meaning
assigned to such term in the preamble to this Agreement.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words
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"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof and
(d) all references herein to Articles and Sections shall, unless the context
otherwise requires, be construed to refer to Articles and Sections of this
Agreement.
ARTICLE II
Priority of Liens
The Trustee, on behalf of itself and the Noteholders, hereby agrees
that, regardless of the relative times of attachment or perfection thereof or
the order of filing of financing statements, mortgages or other documents or any
provision of the Uniform Commercial Code or any other applicable law to the
contrary, the Liens granted in favor of the Trustee pursuant to the Indenture
Security Documents, insofar as covering the Shared Collateral, shall in all
respect be junior and subordinate to the Liens granted or to be granted to the
Agent as security for the Working Capital Facility Secured Obligations, in each
case to the extent that such Liens in favor of the Agent are valid, perfected
and enforceable under the Uniform Commercial Code and all other applicable law.
The Trustee further agrees, on behalf of itself and the Noteholders, that it
shall not (and hereby waives any right to) take any action to contest or
challenge the validity, priority, enforceability or perfection of the Liens of
the Agent on the Shared Collateral.
The Agent, on behalf of itself and the Lenders, hereby confirms that,
except for the Shared Collateral, none of the assets of the Credit Parties or
any of their Subsidiaries constitutes collateral security for any of the Working
Capital Facility Secured Obligations, and that none of the Specified
Subsidiaries is or shall be or become obligated, directly or indirectly, in
respect of any of the Working Capital Facility Secured Obligations.
Except as expressly set forth in this Agreement, each of the Trustee
and the Agent shall have any and all rights it may have as a creditor under
applicable bankruptcy or insolvency law, including the rights to exercise all
rights and remedies in foreclosure or otherwise with respect to any of the
Shared Collateral, provided that any such exercise by the Trustee, and any sale
of the Shared Collateral by the Trustee, shall be subject to the Liens of the
Agent on the Shared Collateral.
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ARTICLE III
Further Assurances
The Trustee and the Agent each agree with the other that, to the
extent it shall be necessary in any jurisdiction with respect to any Shared
Collateral to execute and deliver any additional documents, or take any
additional action, to either (i) implement the subordination of the Liens of the
Trustee on such Shared Collateral to the Liens of the Agent on such Shared
Collateral, or (ii) evidence further that the Agent has no claim against any of
the Property of the Specified Subsidiaries, then each of the Trustee and Agent
agree, upon request of the other, to so execute and deliver such documents and
take such additional action, provided that the Trustee shall not be required to
execute and deliver any such documents or take any such action unless the
request of the Agent shall be accompanied by an Opinion of Counsel to the effect
that such documents are in fact required to be executed, or such action is in
fact required to be taken, to implement such subordination.
Without limiting the generality of the foregoing, it is acknowledged
and agreed that, if requested by the Agent as provided above:
(a) with respect to any Cash Collateral at any time held by the
Trustee, the Trustee shall transfer (together with any necessary
endorsements) any such Cash Collateral, including any thereof held in the
Asset Sale Proceeds Account established under the Indenture, to an account
established by the Agent at a bank or trust company in New York City (the
"Cash Collateral Intermediary") unaffiliated with either the Trustee or the
Agent pursuant to a control or similar agreement to be entered into between
the Cash Collateral Intermediary and the Trustee and Agent, which agreement
shall provide that each of the Trustee and the Agent shall have "control"
(as such term is defined in the Uniform Commercial Code) over such account
and all Cash Collateral therein, and confirming that the Lien and security
interest of the Trustee in such account and Cash Collateral shall be junior
and subordinate to the Lien and security interest of the Agent in such
account and Cash Collateral (and the Agent agrees that it shall not permit
the balance held in such account to be invested at any time other than in
Qualified Cash Equivalents), provided that any Cash Collateral held in such
account may be released to the Company or any of its Subsidiaries (and the
respective agreement with the Cash Collateral Intermediary shall so
provide) only (i) upon the joint authorization of the Trustee and the Agent
(which the Trustee has separately agreed to do upon satisfaction of the
conditions in Article IX of the Indenture) to the Cash Collateral
Intermediary or (ii) for application by the Agent to the payment of the
Working Capital Facility Secured Obligations, so long as the Agent shall
first have certified to the Trustee and the Cash Collateral Intermediary
that a default in payment of Working Capital Facility Obligations has
occurred and is continuing and that the proceeds of such Cash Collateral
are to be immediately applied to the payment of such defaulted Working
Capital Facility Obligations (it being understood that nothing in the
foregoing clauses (i) or (ii) shall be deemed to prohibit the exercise by
the Agent upon default in the payment of any
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Working Capital Facility Obligations of any rights and remedies it may have
with respect to such Cash Collateral); and
(b) with respect to any Possessory Collateral at any time held by the
Trustee, the Trustee will deliver any such Possessory Collateral (including
any shares of Capital Stock or other Equity Interests) held by the Trustee
in its possession to a bank or trust company in New York City (the
"Possessory Collateral Intermediary") unaffiliated with either the Trustee
or the Agent pursuant to a control or similar agreement to be entered into
between the Possessory Collateral Intermediary and the Trustee and Agent,
which agreement shall provide that each of the Trustee and the Agent shall
have "control" (as such term is defined in the Uniform Commercial Code)
over such Possessory Collateral, and confirming that the Lien and security
interest of the Trustee in such Possessory Collateral shall be junior and
subordinate to the Lien and security interest of the Agent in such
Possessory Collateral, provided that such Possessory Collateral may be
released to the Company or any of its Subsidiaries (and the respective
agreement with the Possessory Collateral Intermediary shall so provide)
only upon the joint authorization of the Trustee and the Agent (which the
Trustee has separately agreed to do upon satisfaction of the conditions in
Article IX of the Indenture) to the Possessory Collateral Intermediary (it
being understood that nothing in this proviso shall be deemed to prohibit
the exercise by the Agent upon default in the payment of any Working
Capital Facility Obligations of any rights and remedies it may have with
respect to such Possessory Collateral).
Pending the execution of delivery of an agreement pursuant to the foregoing
paragraphs (a) or (b), the Trustee hereby agrees that any Cash Collateral or
Possessory Collateral held by it under the Indenture is held by it also as an
agent for the Agent under the Working Capital Facility Security Documents and
that the Lien of the Trustee in such Cash Collateral and Possessory Collateral
is subordinate to the Lien of the Trustee, as agent for the Agent, in such Cash
Collateral and Possessory Collateral.
In the event that an agreement of the type referred to in paragraph
(a) or (b) above is executed and delivered between the Cash Collateral
Intermediary or Possessory Collateral Intermediary (as applicable), and the
Trustee and the Agent, then the Trustee agrees that any proceeds of Shared
Collateral received by it at any time and constituting either Cash Collateral or
Possessory Collateral, such Cash Collateral and Possessory Collateral shall be
forthwith transferred to the Cash Collateral Intermediary (together with any
necessary endorsements) or Possessory Collateral Intermediary (as applicable) to
be held by the Cash Collateral Intermediary or Possessory Collateral
Intermediary in accordance with the agreement executed and delivered pursuant to
said paragraph (a) or (b) and that, pending such transfer, the Trustee shall be
deemed to hold such Cash Collateral and Possessory Collateral in trust for the
benefit of the Agent and the Working Capital Facility Lenders.
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ARTICLE IV
Notices of Foreclosure
Concurrently with any exercise by the Trustee of any of its rights and
remedies under the Indenture Security Documents following the occurrence of any
default under the Indenture, the Notes or the Indenture Security Documents the
Trustee shall give notice of such exercise to the Agent. Concurrently with any
exercise by the Agent of any of its rights and remedies under the Working
Capital Facility Security Documents following the occurrence of any default
under the Working Capital Facility Agreement or the Working Capital Facility
Security Documents, the Agent shall give notice of such exercise to the Trustee.
Proceeds of any exercise by the Agent of any of its rights and
remedies under the Working Capital Facility Security Documents shall be applied
by the Agent, first, to the payment of costs and expenses of the Agent and the
Working Capital Facility Lenders in connection with such exercise, second, to
the payment of accrued and unpaid interest in respect of the Working Capital
Facility Secured Obligations, third, to the payment of principal in respect of
the Working Capital Facility Secured Obligations (it being understood that, upon
such payment of principal, the permitted amount of the Working Capital Facility
Secured Obligations under the Indenture shall be reduced by an amount equal to
such payment), and fourth, to any other Working Capital Facility Secured
Obligations. Any excess of such proceeds after such application by the Agent
shall be transferred by the Agent, in the form received (and with any necessary
endorsement) to the Trustee for application by the Trustee in accordance with
the provisions of the Indenture.
ARTICLE V
Certain Matters Relating to the Working Capital Facility Secured Obligations
SECTION 5.01. Notice of Acceptance, Etc. All Working Capital Facility
Secured Obligations at any time made or incurred by any of the Credit Parties
shall be deemed to have been made or incurred in reliance upon this Agreement,
and the Trustee, on behalf of itself and the Noteholders, hereby waives (i)
notice of acceptance by the Agent or any Working Capital Facility Lender of this
Agreement and (ii) notice of the existence or creation or non-payment of all or
any part of the Working Capital Facility Secured Obligations (except for notices
of non-payment referred to in Article III hereof). In addition, the Trustee, on
behalf of itself and the Noteholders, agrees that neither the Agent nor the
Working Capital Facility Lenders shall incur any liability as a result of the
sale of the Shared Collateral, or any part thereof, at any private sale pursuant
to the Working Capital Facility Security Documents conducted in a commercially
reasonable manner.
SECTION 5.02. Modifications to Working Capital Facility
Documents. The Trustee, on behalf of itself and the Noteholders, hereby agrees
that, without affecting the obligations of the Trustee and the Noteholders
hereunder, the Agent and the Working Capital Facility Lenders may, at any time
and from time to time, in their sole discretion without the
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consent of or notice to the Trustee or any Noteholder (except to the extent such
notice or consent is required pursuant to the provisions of this Agreement), and
without incurring any liability to the Trustee or any Noteholder or impairing or
releasing the subordination provided for herein, amend, restate, supplement or
otherwise modify the Working Capital Facility Agreement or any of the Working
Capital Facility Security Documents in any manner whatsoever, including, to
(i) change the manner, place or terms of payment or extend the time
of payment of or renew or alter, all or any of the Working Capital Facility
Secured Obligations or otherwise amend, restate, supplement or otherwise
modify in any manner, or grant any waiver or release with respect to, all
or any part of the Working Capital Facility Secured Obligations or any of
the Working Capital Facility Security Documents,
(ii) retain or obtain a Lien on any Property of any of the Credit
Parties, in each case to secure any of the Working Capital Facility Secured
Obligations, and in that connection to enter into any additional Working
Capital Facility Security Documents with any Credit Party,
(iii) to amend, or grant any waiver, compromise or release with
respect to, or consent to any departure from, any guaranty or other
obligations of any Person obligated in any manner under or in respect of
the Working Capital Facility Secured Obligations,
(iv) release its Lien on any Property of any Credit Party,
(v) exercise or refrain from exercising any rights against any
Credit Party or any other Person,
(vi) retain or obtain the primary or secondary obligation of any
other Person (other than any Subsidiary of a Credit Party that is not
itself a Credit Party) with respect to any of the Working Capital Facility
Secured Obligations, and
(vii) otherwise manage and supervise the Working Capital Facility
Secured Obligations as the Agent and the Working Capital Facility Lenders
shall deem appropriate,
in each case to the extent permitted by, and not resulting in a Default or Event
of Default under, the Indenture, provided that, notwithstanding the foregoing,
it is understood that in the event of a release by the Agent of any Credit Party
from its guaranty or other obligations in respect of the Working Capital
Facility Secured Obligations, or the release from the Lien of the Working
Capital Facility Security Documents with respect to any Shared Collateral, the
subordination of the Trustee hereunder in respect of the Property of such Credit
Party shall no longer be applicable).
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ARTICLE VI
Miscellaneous
SECTION 6.01. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing, telecopied or delivered:
if to the Trustee:
[to be provided]
Attention: [to be provided]
Facsimile: [to be provided]
if to the Agent:
[to be provided]
Attention: [to be provided]
Facsimile: [to be provided]
or, as to either party, at such other address as shall be designated by such
party in a written notice to the other party. All such notices and
communications shall, when delivered or telecopied, be effective when delivered
or transmitted by telecopier, respectively.
SECTION 6.02. Waivers; Amendments.
(a) Waivers. No waiver of any provision of this Agreement, or consent
to any departure by any party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section 6.02, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given.
(b) Amendments, Etc. Neither this Agreement, nor any provision
hereof, may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Trustee and the Agent.
SECTION 6.03. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 6.04. Inconsistent Agreements. To the extent that any
provision of this Agreement shall be inconsistent with any provision of the
Indenture, the Notes, the Indenture Security Documents, the Working Capital
Facility Agreement or the Working Capital Facility Security Documents, the
provision of this Agreement shall be controlling.
SECTION 6.05. Successors, Assigns and Transfers. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns or transferees.
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SECTION 6.06. No Third Party Beneficiaries. The agreements of the
parties hereto are solely for the benefit of the Trustee, the Noteholders, the
Agent and the Lenders and their respective successors and assigns and no other
Person shall have any rights hereunder.
SECTION 6.07. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 6.08. Severability. In the event that one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality or
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
SECTION 6.09. Headings. Article and Section headings used herein are
for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 6.10. Specific Performance. The Agent (on behalf of itself
and the Working Capital Facility Lenders) on the one hand, and the Trustee (on
behalf of itself and the Noteholders) on the other hand, (a) are hereby
authorized to demand specific performance of the provisions of this Agreement,
at any time when the Trustee or any Noteholder, on the one hand, or the Agent or
any Working Capital Facility Lender, on the other hand, shall have failed to
comply with any term or provision hereof and (b) hereby irrevocably waives any
defense based on the adequacy of a remedy at law that might be asserted as a bar
to such remedy of specific performance.
SECTION 6.11. Trustee Rights. The rights, privileges, immunities and
indemnities provided to the Trustee under Article VIII of the Indenture shall,
to the extent applicable, apply in this Agreement as if fully set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
[NAME OF TRUSTEE], as
Trustee
By_________________________________
Name:
Title:
[NAME OF AGENT], as
Agent
By_________________________________
Name:
Title:
Intercreditor Agreement
EXHIBIT D
[Form of Security Agreement]
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of __________, 2003, between GLOBAL
CROSSING NORTH AMERICA, a corporation duly organized and validly existing under
the laws of the State of New York (the "Issuer"), [NAME OF NEW GLOBAL CROSSING
HOLDING COMPANY], a company duly organized and validly existing under the laws
of Bermuda (the "Company"), the other entities identified on the signature pages
hereto under the caption "GUARANTORS" (the Company together with such other
entities, and any entity that shall become a Guarantor hereunder pursuant to
Section 5.11 hereof, being herein called the "Guarantors" and, together with the
Issuer, the "Credit Parties") and [NAME OF TRUSTEE], as trustee (the "Trustee").
Pursuant to an Indenture dated as of ________, 2003 (the "Indenture")
between the Credit Parties and the Trustee, the Issuer has issued $200,000,000
of its 11% Senior Secured Notes due 2006 (the "Notes") and the Guarantors have
unconditionally guaranteed all of the obligations of the Issuer under and in
respect of the Notes.
To induce the holders of the Notes to accept the same as provided in
the Indenture, the Credit Parties wish to grant liens and security interests on
all of their Property (as hereinafter defined) as collateral security for the
obligations of the Credit Parties under and in respect of, inter alia, the
Indenture and the Notes. Accordingly, the parties hereto agree as follows:
Section 1. Definitions.
(a) Indenture Terms. Terms defined in the Indenture are used herein
as defined therein.
(b) Certain Uniform Commercial Code Terms. The terms "Accounts",
"Chattel Paper", "Deposit Account", "Document", "Electronic Chattel Paper",
"Equipment", "Fixtures", "General Intangible", "Goods", "Instrument",
"Inventory", "Investment Property", "Letter-of-Credit Right", "Payment
Intangible", "Proceeds" and "Software" have the respective meanings ascribed
thereto in Article 9 of the Uniform Commercial Code. The term "Financial Assets"
shall have the meaning ascribed thereto in Article 8 of the Uniform Commercial
Code.
(c) Certain other Terms. In addition, as used herein:
"Collateral" has the meaning assigned to such term in Section 3.
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"Copyright Collateral" means all Copyrights, whether now owned or
hereafter acquired by any Credit Party, including each Copyright identified
in Annex 4.
"Copyrights" means all copyrights, copyright registrations and
applications for copyright registrations, including all renewals and
extensions thereof, the right to recover for all past, present and future
infringements thereof, and all other rights of any kind whatsoever accruing
thereunder or pertaining thereto.
"Intellectual Property" means collectively, all Copyright Collateral,
all Patent Collateral and all Trademark Collateral, together with (a) all
inventions, processes, software, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Credit Party with respect to any of the
foregoing, including software licenses, in each case whether now or
hereafter owned or used including the licenses or other agreements with
respect to the Copyright Collateral, the Patent Collateral or the Trademark
Collateral, listed in Annex 7; (c) all information, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic
machinery software and programs with respect to any of the foregoing; (d)
all field repair data, sales data and other information relating to sales
or service of products now or hereafter manufactured; (e) all accounting
information and all media in which or on which any information or knowledge
or data or records may be recorded or stored and all computer programs used
for the compilation or printout of such information, knowledge, records or
data; (f) all licenses, consents, permits, variances, certifications and
approvals of governmental agencies now or hereafter held by any Credit
Party; and (g) all causes of action, claims and warranties now or hereafter
owned or acquired by any Credit Party in respect of any of the items listed
above.
"Issuers" means, collectively, (a) the respective corporations,
partnerships or other entities identified under the names of the Credit
Parties on Annex 3 under the caption "Issuer" and (b) any other entity that
shall at any time be a Subsidiary of any Credit Party.
"Motor Vehicles" means motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Patent Collateral" means all Patents, whether now owned or hereafter
acquired by any Credit Party, including each Patent identified in Annex 5.
"Patents" means all patents and patent applications, including the
inventions and improvements described and claimed therein together with the
reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, all income, royalties, damages and payments
now or hereafter due and/or payable under and with respect thereto,
including damages and payments for past or future infringements thereof,
the right to ▇▇▇ for past, present and future infringements thereof, and
all rights corresponding thereto throughout the world.
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"Pledged Indebtedness" means any Indebtedness of any Person held by
any Credit Party.
"Pledged Stock" has the meaning assigned to such term in Section 3(c).
"Secured Obligations" means, collectively, (a) the obligations of the
Issuer under and in respect of the Indenture and the Notes and (b) all
present and future obligations of the Credit Parties hereunder or under any
of the other Security Documents.
"Stock Collateral" has the meaning assigned to such term in Section
3(c)(ii).
"Trademark Collateral" means all Trademarks, whether now owned or
hereafter acquired by any Credit Party, including each Trademark identified
in Annex 6. Notwithstanding the foregoing, the Trademark Collateral does
not and shall not include any Trademark that would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of
the Trademark Collateral.
"Trademarks" means all trade names, trademarks and service marks,
logos, trademark and service ▇▇▇▇ registrations, and applications for
trademark and service ▇▇▇▇ registrations, including, without limitation,
all renewals of trademark and service ▇▇▇▇ registrations, all rights
corresponding thereto throughout the world, the right to recover for all
past, present and future infringements thereof, all other rights of any
kind whatsoever accruing thereunder or pertaining thereto, together, in
each case, with the product lines and goodwill of the business connected
with the use of, and symbolized by, each such trade name, trademark and
service ▇▇▇▇.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. Representations and Warranties. Each Credit Party
represents and warrants to the Trustee and the Holders that:
(a) Title and Priority. Such Credit Party is the sole beneficial
owner of the Collateral in which it purports to grant a security interest
pursuant to Section 3 and no Lien exists or will exist upon such Collateral
at any time, except for Permitted Liens and except for such security
interest in favor of the Trustee for the benefit of the Trustee and the
Holders created pursuant hereto. To the extent the Uniform Commercial Code
is applicable thereto, the security interest created pursuant hereto
constitutes a valid security interest in the Collateral in which such
Credit Party purports to grant a security interest pursuant to Section 3,
which, upon perfection of such security interest under applicable law, will
be subject to no equal or prior Lien other than Permitted Liens referred to
in clauses (e), (h), (i), (j), (k), (l), (m), (n) or (o) of the definition
of such term in Section 1.01 of the Indenture and the Liens in favor of the
Agent under and as defined in the Intercreditor Agreement.
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(b) Names, Etc. The full and correct legal name, type of
organization, jurisdiction of organization, organizational ID number (if
applicable) and mailing address of each Credit Party as of the date hereof
are correctly set forth in Annex 1. Annex 1 correctly specifies (x) the
place of business of each Credit Party or, if such Credit Party has more
than one place of business, the location of the chief executive office of
such Credit Party, and (y) each location of the Credit Parties where
Property in excess of $________ as of December 31, 2002 of the Credit
Parties is located (other than Motor Vehicles constituting Equipment and
Goods in transit).
(c) Changes in Circumstances. Such Credit Party has not (i) within
the period of four months prior to the date hereof, changed its "location"
(as defined in Section 9-307 of the Uniform Commercial Code), (ii) except
as specified in Annex 1, heretofore changed its name, or (iii) except as
specified in Annex 2, heretofore become a "new debtor" (as defined in
Section 9-102(a)(56) of the Uniform Commercial Code) with respect to a
currently effective security agreement previously entered into by any other
Person.
(d) Pledged Stock. The Pledged Stock, if any, identified under the
name of such Credit Party in Annex 3 is, and all other Pledged Stock in
which such Credit Party shall hereafter grant a security interest pursuant
to Section 3 will be, duly authorized, validly issued, fully paid and
non-assessable and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the charter, by-laws or
other organizational document of the respective Issuer of such Pledged
Stock, upon the transfer of such Pledged Stock (except for any restriction
contained herein or under such organizational documents).
The Pledged Stock, if any, identified under the name of such Credit
Party in Annex 3 constitutes 100% of all the issued and outstanding shares
of capital stock of whatever class of such Issuer beneficially owned by
such Credit Party on the date hereof (whether or not registered in the name
of such Credit Party); Annex 3 correctly identifies, as at the date hereof,
the respective Issuers of such Pledged Stock and the respective class and
par value or other identifying characteristics of the shares constituting
such Pledged Stock and the respective number of shares (and registered
owners thereof) represented by each such certificate.
(e) Pledged Indebtedness. The Pledged Indebtedness, if any,
identified under the name of such Credit Party in Annex 8 constitutes all
Indebtedness held by any of the Credit Parties evidenced by an Instrument
and Annex 8 correctly identifies, as of the date hereof, the respective
obligors in respect of such Pledged Indebtedness, the amount and maturity
thereof, and any collateral security or Guarantees therefor.
(f) Intellectual Property. Annexes 4, 5, and 6, respectively, set
forth under the name of such Credit Party a complete and correct list of
all Copyrights, Patents and Trademarks (in each case to the extent
encompassed within the definition of "Intellectual Property" in Section
1(b) hereof) owned by such Credit Party on the date hereof, and all
registrations listed in Annexes 4, 5, and 6, are properly issued and in
full force and effect.
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Annex 7 sets forth under the name of such Credit Party all licenses and
other user agreements pursuant to which such Credit Party has been granted
the right to use any Copyrights, Patents or Trademarks owned by others.
To such Credit Party's knowledge, (i) except as set forth in Annex 4,
5 or 6, there is no violation by others of any right of such Credit Party
with respect to any Copyright, Patent or Trademark listed in Annexes 4, 5,
and 6, respectively, under the name of such Credit Party and (ii) such
Credit Party is not infringing upon any copyright, patent or trademark of
any other Person by virtue of the conduct of its business; and no
proceedings have been instituted or are pending against such Credit Party
or, to such Credit Party's knowledge, threatened, and no claim against such
Credit Party has been received by such Credit Party, alleging any such
violation, except as may be set forth in Annex 7.
Section 3. Collateral. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, each Credit Party hereby pledges and grants to the
Trustee, for the benefit of the Trustee and the Holders as hereinafter provided,
a security interest in and to all of such Credit Party's right, title and
interest in the following property, whether now owned by such Credit Party or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"):
(a) all Accounts, all General Intangibles, all Deposit Accounts, all
Instruments, all Documents, all Chattel Paper (whether tangible or
electronic), all Inventory, all Equipment, all Fixtures;
(b) all Goods not covered by the preceding clause (a);
(c) the shares of voting stock of the Issuers identified in Annex 3
under the name of such Credit Party and all other shares of capital stock
of whatever class of the Issuers owned by such Credit Party together with
all rights, privileges, authority and power of such Issuer with respect to
such shares, in each case together with the certificates, instruments and
agreements, if any, evidencing the same (collectively, the "Pledged
Stock"), together with:
(i) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution
or return of capital upon or in respect of the Pledged Stock, or
resulting from a split-up, revision, reclassification or other like
change of the Pledged Stock or otherwise received in exchange
therefor, and any subscription warrants, rights, agreements or options
issued to the holders of, or otherwise in respect of, the Pledged
Stock; and
(ii) without affecting the obligations of such Credit Party
under any provision prohibiting such action hereunder or under the
Indenture, in the event of any consolidation or merger in which an
Issuer is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation (unless
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such successor corporation is such Credit Party itself) formed by or
resulting from such consolidation or merger (the Pledged Stock,
together with all other certificates, shares, securities, properties
or moneys as may from time to time be pledged hereunder pursuant to
this clause (ii) and clause (i) above being herein collectively called
the "Stock Collateral");
(d) all Investment Property and Financial Assets not covered by
clause (c) of this Section 3;
(e) all Intellectual Property;
(f) all rights, claims and benefits of such Credit Party against any
Person arising out of, relating to or in connection with the Intellectual
Property, and Inventory or Equipment purchased by such Credit Party,
including, without limitation, any such rights, claims or benefits against
any Person storing or transporting such Inventory or Equipment;
(g) all Payment Intangibles, Software and all other General
Intangibles whatsoever not covered by the preceding clauses of this Section
3;
(h) all Pledged Indebtedness;
(i) the balance from time to time in the Asset Sale Proceeds Account,
the Specified Subsidiary Asset Sale Proceeds Account and the Specified
Subsidiary Casualty Event Proceeds Account, and all Investment Property and
Financial Assets at any time held in any of such Accounts;
(j) all real property, including all leasehold interests and all
rights to use any real property interest;
(k) all other tangible and intangible personal property, and all real
property and real property interests, whatsoever of such Credit Party; and
(l) all Proceeds, products, offspring, accessions, rents, profits,
income, benefits, substitutions and replacements of and to any of the
collateral and, to the extent related to any collateral, all books,
correspondence, credit files, records, invoices and other papers (including
without limitation all tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Credit Party or
any computer bureau or service company from time to time acting for such
Credit Party),
IT BEING UNDERSTOOD, HOWEVER, that in no event shall the security interest
granted under this Section 3 attach (A) to any lease, license, contract,
property rights or agreement to which any Credit Party is a party (or to any of
its rights or interests thereunder) if the grant of such security interest would
constitute or result in either (i) the abandonment, invalidation or
unenforceability of any right, title or interest of any Credit Party therein or
(ii) in a breach or
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termination pursuant to the terms of, or a default under, any such lease,
license, contract, property rights or agreement (other than, to the extent that
any such term would be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the Uniform Commercial Code) or (B) without limiting the
provisions of Section 6.02 of the Indenture, to any Property in any
jurisdiction, to the extent that obtaining a Lien upon such Property under such
jurisdiction is prohibited under applicable law, or requires the obtaining of a
governmental approval (which governmental approval has not yet been obtained).
It is contemplated that, with respect to Collateral of any Credit Party
that (x) consists of any real property or real property interest (wherever
located), (y) any Collateral of any Credit Party that may be located outside of
the United States, and (z) any Collateral wherever located of any Credit Party
that may be organized or that conducts business outside of the United States,
such Credit Party will concurrently with the execution and delivery of this
Agreement (but subject to Section 6.02 of the Indenture) execute and deliver
such additional security agreements, pledge agreements, assignments, mortgages
and other similar instruments or documents as shall be necessary or appropriate
(and permitted under applicable law) in order to create, perfect and make
enforceable Liens upon and other security interests in the Collateral owned by
such Credit Party under the law of the jurisdiction in which such Collateral is
located or in which such Credit Party is organized or conducts business. Any
such additional security agreements, pledge agreements, assignments, mortgages
and similar instruments and documents shall be deemed to supplement and not
supersede the Liens and security interests provide herein.
Section 4. Further Assurances; Remedies. In furtherance of the grant of
the pledge and security interest pursuant to Section 3, the Credit Parties
hereby jointly and severally agree with the Trustee as follows:
4.01 Delivery and Other Perfection. Each Credit Party shall:
(a) if any of the shares, securities, moneys or property required to be
pledged by such Credit Party under clauses (c)(i) and (c)(ii) of Section 3
are received by such Credit Party forthwith, either (x) transfer and
deliver to the Trustee (or to the Agent under the Intercreditor Agreement
as provided in Article III thereof) such shares or securities so received
by such Credit Party (together with the certificates for any such shares
and securities duly endorsed in blank or accompanied by undated stock
powers duly executed in blank), all of which thereafter shall be held by
the Trustee (or the Agent), pursuant to the terms of this Agreement, as
part of the Collateral or (y) take such other action as shall be necessary
to duly record the Lien created hereunder in such shares, securities,
moneys or property in said clauses (c)(i) and (c)(ii), including, with
respect to the Lien on the shares of an Issuer which are not represented by
certificates, the registration in the shareholders register of such Issuer
of appropriate entries evidencing said Lien;
(b) deliver and pledge to the Trustee (or to the Agent under the
Intercreditor Agreement as provided in Article III thereof) any and all
Instruments (other than checks) constituting part of the Collateral in
which such Credit Party purports to grant a security interest hereunder,
endorsed and/or accompanied by such instruments of assignment and transfer
in such form and substance as the Trustee may request; provided, that so
long as
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no Event of Default shall have occurred and be continuing, such Credit
Party may retain for collection in the ordinary course any Instruments
received by such Credit Party in the ordinary course of its business and
the Trustee shall, promptly upon request of such Credit Party through the
Company, make arrangements against trust receipt or like document for
making any Instrument pledged by such Credit Party available to such Credit
Party for purposes of presentation, collection or renewal;
(c) deliver and pledge to the Trustee (or to the Agent under the
Intercreditor Agreement as provided in Article III thereof) any and all
promissory notes or other instruments constituting part of the Collateral
and evidencing any of the Pledged Indebtedness in excess of $200,000,
endorsed and/or accompanied by such instruments of assignment and transfer
in such form as shall be necessary to perfect the Lien of the Trustee in
such promissory notes and instruments;
(d) give, execute, deliver, file, record, authorize or obtain all such
financing statements, notices, instruments, documents, agreements or
consents or other papers as shall be necessary to create, preserve, perfect
or validate the security interest granted pursuant hereto or to enable the
Trustee to exercise and enforce its rights hereunder with respect to such
pledge and security interest, including, without limitation, causing any or
all of the Stock Collateral to be transferred of record into the name of
the Trustee or its nominee (and the Trustee agrees that if any Stock
Collateral is transferred into its name or the name of its nominee, the
Trustee will thereafter promptly upon request therefor by the Company give
to such Credit Party copies of any notices and communications received by
it with respect to the Stock Collateral pledged by such Credit Party
hereunder);
(e) keep accurate books and records relating to the Collateral, and
stamp or otherwise ▇▇▇▇ such books and records in such manner as shall be
necessary in order to reflect the security interests granted by this
Agreement;
(f) following the occurrence and during the continuance of an Event of
Default, permit representatives of the Trustee, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Collateral, and permit
representatives of the Trustee to be present at such Credit Party's place
of business to receive copies of all communications and remittances
relating to the Collateral, and forward copies of any notices or
communications received by such Credit Party with respect to the
Collateral, all in such manner as the Trustee may reasonably require; and
(g) subject to Section 6.02 of the Indenture, execute and deliver and
cause to be filed, such continuation statements, and do such other acts and
things, as may be necessary to maintain the perfection of the security
interest granted pursuant hereto.
4.02 Other Financing Statements and Liens. Except for Permitted Liens,
no Credit Party shall file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Collateral in
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which the Trustee is not named as the sole secured party for the benefit of the
Trustee and the Holders.
4.03 Preservation of Rights. The Trustee shall not be required to take
steps necessary to preserve any rights against prior parties to any of the
Collateral.
4.04 Special Provisions Relating to Stock Collateral. The Credit
Parties will cause the Stock Collateral to constitute at all times 100% of all
the total number of shares of Capital Stock of each Issuer then issued and
outstanding held by the Credit Parties.
So long as no Event of Default shall have occurred and be continuing,
the Credit Parties shall have the right to exercise all voting, consensual and
other powers of ownership pertaining to the Stock Collateral for all purposes
not inconsistent with the terms of this Agreement, the Indenture or any other
Security Document or any other instrument or agreement referred to herein or
therein, provided that the Credit Parties jointly and severally agree that they
will not vote the Stock Collateral in any manner that results in a violation of
the terms of this Agreement, the Indenture, the Security Documents or any such
other instrument or agreement; and the Trustee shall execute and deliver to the
Credit Parties or cause to be executed and delivered to the Credit Parties all
such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Credit Parties may reasonably request
pursuant to an Issuer Request for the purpose of enabling the Credit Parties to
exercise the rights and powers that they are entitled to exercise pursuant to
this Section 4.04.
4.05 Events of Default, Etc. During the period during which an Event of
Default shall have occurred and be continuing:
(a) each Credit Party shall, at the request of the Trustee, assemble
the Collateral owned by it at such place or places, reasonably convenient
to both the Trustee and such Credit Party, designated in the Trustee's
request;
(b) the Trustee may make any reasonable compromise or settlement deemed
desirable with respect to any of the Collateral and may extend the time of
payment, arrange for payment in installments, or otherwise modify the terms
of, any of the Collateral;
(c) the Trustee shall have all of the rights and remedies with respect
to the Collateral of a secured party under the Uniform Commercial Code
(whether or not the Uniform Commercial Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder or under any of the other Security Documents may be asserted,
including the right, to the fullest extent permitted by applicable law, to
exercise all voting, consensual and other powers of ownership pertaining to
the Collateral as if the Trustee were the sole and absolute owner thereof
(and each Credit Party agrees to take all such action as may be appropriate
to give effect to such right);
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(d) the Trustee in its discretion may, in its name or in the name of
any Credit Party or otherwise, demand, ▇▇▇ for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so; and
(e) the Trustee may, upon ten Business Days' prior written notice to
the Credit Parties of the time and place, with respect to the Collateral or
any part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Trustee, or any of its agents, sell,
lease, assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Trustee deems best, and for cash or for
credit or for future delivery (without thereby assuming any credit risk),
at public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable statute and
cannot be waived), and the Trustee or any other Holder or anyone else may
be the purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent permitted
by law, at any private sale) and thereafter, to the fullest extent
permitted by law, hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Credit Parties, any such demand, notice and right or
equity being hereby expressly waived and released, to the fullest extent
permitted by law. The Trustee may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the sale may be so
adjourned.
In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill connected with and symbolized by the
Trademark Collateral subject to such disposition shall be included, and the
Credit Parties shall supply to the Trustee or its designee, for inclusion
in such sale, assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09.
The Credit Parties recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Trustee may be compelled, with respect to any sale of all
or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The Credit
Parties acknowledge that any such private sales may be at prices and on terms
less favorable to the Trustee than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances, agree that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Trustee shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the Credit Parties or issuer thereof to
register it for public sale.
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4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Credit Parties shall remain liable for any
deficiency.
4.07 Locations; Names. Without at least 30 days' prior written notice
to the Trustee, and (in the case of a change of its name) delivery of an Opinion
of Counsel identifying any action required to be taken by such Credit Party or
the Trustee to perfect or continue the perfection of the Liens hereunder granted
by such Credit Party, no Credit Party shall change its "location" (as defined in
Section 9-307 of the Uniform Commercial Code) or change its name from the name
shown as its current legal name on Annex 1.
4.08 Private Sale. The Trustee and the Holders shall incur no liability
as a result of the sale of the Collateral, or any part thereof, at any private
sale pursuant to Section 4.05 conducted in a commercially reasonable manner.
Each Credit Party hereby waives any claims against the Trustee or any Holder
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if the Trustee accepts the first offer received and does not
offer the Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Trustee under this Section 4, shall be applied by the Trustee in the
manner set forth in Section 7.01 of the Indenture.
4.10 Attorney-in-Fact. Without limiting any rights or powers granted by
this Agreement to the Trustee while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default the Trustee is hereby appointed the attorney-in-fact of each Credit
Party for the purpose of carrying out the provisions of this Section 4 and
taking any action and executing any instruments which the Trustee may reasonably
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, so long as the Trustee shall be
entitled under this Section 4 to make collections in respect of the Collateral,
the Trustee shall have the right and power to receive, endorse and collect all
checks made payable to the order of any Credit Party representing any dividend,
payment or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same.
4.11 Perfection. Each Credit Party consents that Uniform Commercial
Code financing statements may be filed describing the Collateral as "all assets"
or "all personal property" of such Credit Party (provided that no such
description shall be deemed to modify the description of Collateral set forth in
Section 3).
4.12 Termination. When all Secured Obligations shall have been paid in
full, this Agreement shall terminate and the Trustee shall forthwith cause to be
assigned, transferred and
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delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the respective Credit Party. The Trustee shall, at the
expense of the Company, also execute and deliver to the respective Credit Party
upon such termination such Uniform Commercial Code termination statements and
such other documentation as shall be reasonably requested by the respective
Credit Party to effect the termination and release of the Liens on the
Collateral.
Section 5. Miscellaneous.
5.01 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the respective parties hereto
as provided in Section 12.02 of the Indenture. All such communications shall be
deemed to have been given at the times specified in said Section 12.02.
5.02 No Waiver. No failure on the part of the Trustee or any Holder to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Trustee or any Holder of any right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
5.03 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each Credit
Party and the Trustee in accordance with the provisions of Article XI of the
Indenture. Any such amendment or waiver shall be binding upon the Trustee, each
Holder and each Credit Party.
5.04 Expenses. The Credit Parties jointly and severally agree to
reimburse each of the Trustee for all reasonable costs and expenses of the
Trustee (including the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceeding
resulting therefrom, including all manner of participation in or other
involvement with (w) performance by the Trustee of any obligations of the Credit
Parties in respect of the Collateral that the Credit Parties have failed or
refused to perform, (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Trustee in respect thereof, by litigation or otherwise,
including expenses of insurance, (y) judicial or regulatory proceedings and (z)
workout, restructuring or other negotiations or proceedings (whether or not the
workout, restructuring or transaction contemplated thereby is consummated) and
(ii) the enforcement of this Section 5.04, and all such costs and expenses shall
be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.
5.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each Credit
Party, the Trustee and each Holder (provided that no Credit Party shall assign
or transfer its rights or obligations hereunder without the prior written
consent of the Trustee).
Security Agreement
-13-
5.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
5.07 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
5.08 Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
5.09 Agents and Attorneys-in-Fact. The Trustee may employ agents and
attorneys-in-fact in connection herewith and shall not be responsible for the
gross negligence or willful misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
5.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and (b) the invalidity or unenforceability of any provision hereof
in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
5.11 Additional Guarantors. As contemplated by Section 4.19 of the
Indenture, if at any time after the date of the Indenture the Company shall form
or acquire any new Subsidiary that shall constitute a Material Subsidiary, or if
after the date of the Indenture any existing Subsidiary not a Material
Subsidiary shall become a Material Subsidiary, the Company will within three
Business Days thereof cause such new or existing Subsidiary to execute and
deliver to the Trustee a Guarantee Supplement in substantially the form of
Exhibit B to the Indenture, and thereby to become a "Guarantor" under the
Indenture and this Agreement, and (i) deliver such Opinions of Counsel in New
York and applicable foreign jurisdictions as to (x) the valid existence of such
Guarantor, (y) the due authorization, execution and enforceability of such
Guarantee Supplement and (z) such other matters as the Trustee may reasonably
request and (ii) take such action (including executing and delivering such
Security Documents, instruments of further assurance and amendments or
supplements thereto, and delivering such additional Opinions of Counsel and
other documents or instruments as required under Section 6.03(c) of the
Indenture), in order that such new or existing Subsidiary shall grant Liens on
all Property owned by it then existing or thereafter arising that are included
in the definition of "Collateral" in Section 1.01 hereof.
Accordingly, upon the execution and delivery of any such Guarantee
Supplement by any such Subsidiary, such new Subsidiary shall automatically and
immediately, and without any further action on the part of any Person, become a
"Guarantor" and a "Credit Party" for all purposes of this Agreement, and Annexes
1 through 8, inclusive, hereto shall be deemed to be supplemented in the manner
specified in such Guarantee Assumption Agreement. In addition, upon execution
and delivery of any such Guarantee Supplement, the new Guarantor makes the
representations and warranties set forth in Section 2.
Security Agreement
-14-
5.12 Trustee Rights. The rights, privileges, immunities and
indemnities provided to the Trustee under Article VIII of the Indenture shall,
to the extent applicable, apply in this Agreement as if fully set forth herein.
Security Agreement
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed as of the date first written above.
ISSUER
GLOBAL CROSSING NORTH AMERICA
By: _____________________________________________
Name:
Title:
GUARANTORS
[NAME OF NEW GLOBAL CROSSING
HOLDING COMPANY]
By: _____________________________________________
Name:
Title:
[Names of additional Guarantors to be inserted]
TRUSTEE
[NAME OF TRUSTEE],
as Trustee
By: _____________________________________________
Name:
Title:
Security Agreement
ANNEX 1
FILING DETAILS
[See Sections 2(b), 2(c) and 4.07]
-------------------------------------------------------------------------------------------------------------------------------
Former
Type of Jurisdiction Organizational Place of Location Legal
Current Legal Organization of ID Business or of Name(s)
Name (no trade (corporation, Organization Number Current Mailing Location of Goods (if any)
----- ------------ --------------- ----- --------
names) limited liability (if applicable) Address Chief Executive
------ --------- --------------- -------
company, etc.) Officer
-------------- -------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
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Annex 1 to Security Agreement
ANNEX 2
"NEW DEBTOR" EVENTS
[See Section 2(c)]
[To be completed]
Annex 2 to Security Agreement
ANNEX 3
PLEDGED STOCK
[See definition of "Issuers" and Sections 2(d), 2(e) and 3(c)]
-------------------------------------------------------------------------------
Issuer Certificate No(s). Registered Owner Number of Shares
Pledged
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Annex 3 to Security Agreement
ANNEX 4
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See definition of "Copyright Collateral" and Section 2(f)]
[To be completed]
Annex 4 to Security Agreement
ANNEX 5
LIST OF PATENTS AND PATENT APPLICATIONS
[See definition of "Patent Collateral" and Section 2(f)]
[To be completed]
Annex 5 to Security Agreement
ANNEX 6
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
[See definition of "Trademark Collateral" and Section 2(f)]
[To be completed]
Annex 6 to Security Agreement
ANNEX 7
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See definition of "Intellectual Property" and Section 2(f)]
[To be completed]
Annex 7 to Security Agreement
ANNEX 8
PLEDGED INDEBTEDNESS
[See Section 2(e)]
[To be completed]
Annex 8 to Security Agreement
EXHIBIT E-1
[Form of Affiliate Subordination Provisions]
Set forth below are certain definitions and the terms of subordination
that, pursuant to the last paragraph of Section 4.09 of the Indenture, are to be
applicable to certain Indebtedness incurred by the [Credit Parties] in
accordance with said Section 4.09. In addition to the terms set forth below,
such Indebtedness must provide that, unless a bankruptcy or insolvency event has
occurred, or the principal of and interest on the Notes under the Indenture
shall have been declared (or shall have become) due and payable, no acceleration
of such Indebtedness may occur without at least 30 days notice being given to
the Trustee.
Section [X]. Subordination. Anything in this [Agreement] [Note] to the
contrary notwithstanding, the indebtedness arising under this [Agreement] [Note]
shall be subordinate and junior in right of payment, to the extent and in the
manner hereinafter set forth, to (x) all indebtedness and other obligations of
the [Credit Party] under the [Notes] [Note Guarantee] and the Indenture (as the
same may be modified and supplemented from time to time, and including all
agreements extending, renewing or refinancing the same) and (y) all interest
accruing after the commencement of any proceedings referred to in clause (ii)
below, whether or not such interest is an allowed claim in such proceeding (all
such indebtedness or other liabilities and interest being herein called "Senior
Indebtedness"):
(i) The holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of all amounts constituting Senior Indebtedness
before the holder of indebtedness under this [Agreement] [Note] (herein,
the "Affiliate") is entitled to receive any payment on account of the
indebtedness and other obligations under this [Agreement] [Note] (and
unless and until all Senior Indebtedness has been so paid, the Affiliate
will not (x) ask, demand, ▇▇▇ for, take or receive from the [Credit Party],
by set-off or in any other manner, or (y) seek any other remedy allowed at
law or in equity against the [Credit Party] for breach of the [Credit
Party]'s obligations under this [Agreement] [Note])[, provided that, so
long as at the time thereof and after giving effect thereto no Default or
Event of Default shall have occurred and be continuing under the Indenture,
the [Credit Party] may make, and the Affiliate shall be entitled to receive
and retain payments in respect of the principal of and interest of the
indebtedness under this [Agreement] [Note]]./1/
(ii) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the [Credit Party] or to its creditors,
as such, or to its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the [Credit
Party], whether or not involving insolvency or bankruptcy, then the holders
of Senior Indebtedness shall be entitled to receive payment in full of all
amounts
___________________
/1/ Not to be included for Indebtedness Incurred pursuant to clause (j) of the
second paragraph of Section 4.09 of the Indenture.
Affiliate Subordination Provisions
-2-
constituting Senior Indebtedness before the Affiliate is entitled to
receive, or make any demand for, any payment on account of the indebtedness
under this [Agreement] [Note], and to that end the holders of Senior
Indebtedness shall be entitled to receive for application in payment
thereof any payment or distribution of any kind or character, whether in
cash or property or securities.
(iii) If any payment or distribution of any character, whether in
cash, securities or other property, in respect of the indebtedness under
this [Agreement] [Note] shall (despite these subordination provisions) be
received by the Affiliate before all Senior Indebtedness shall have been
paid in full in cash, such payment or distribution shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness (or their representatives), and to holders of any other
Indebtedness to which the indebtedness under this [Agreement] [Note] is
similarly subordinated, ratably according to the respective aggregate
amounts remaining unpaid thereon, to the extent necessary to pay all Senior
Indebtedness, and all such other Indebtedness, in full.
No present or future holder of Senior Indebtedness shall be prejudiced
in its right to enforce subordination of this [Agreement] [Note] by any act or
failure to act on the part of the [Credit Party] or by any act or failure to
act, in good faith on the part of such holder or any trustee or agent for such
holder. The foregoing provisions are solely for the purpose of defining the
relative rights of the holders of Senior Indebtedness on the one hand, and the
Affiliate on the other hand, and nothing herein shall impair, as between the
[Credit Party] and the Affiliate, the obligation of the [Credit Party], which is
unconditional and absolute, to pay to the Affiliate the principal hereof and
interest hereon in accordance with the terms hereof.
Section [Y]. Subrogation. Subject to the payment in full in cash of
all Senior Indebtedness, the Affiliate shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, and interest on, the indebtedness under this [Agreement] [Note]
shall be paid in full in cash. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Affiliate would be entitled except for the provisions of
Section [X], and no payments over pursuant to the provisions of Section [X] to
the holders of Senior Indebtedness by the Affiliate, shall, as between the
[Credit Party], its creditors other than holders of Senior Indebtedness, and the
Affiliate, be deemed to be a payment or distribution by the [Credit Party] to or
on account of the Senior Indebtedness.
Section Z. Defaults. If after payment in full in cash of the Senior
Indebtedness, any payment is not made when due hereunder or any other event of
default shall occur hereunder, the Affiliate may declare all amounts owing in
respect of the Indebtedness under this [Agreement] [Note] due and payable,
provided that if after repayment in full of the Senior Indebtedness, any
payments of Senior Indebtedness shall at any time be rescinded or otherwise must
be returned by the holder of any Senior Indebtedness, such demand, if made,
shall be automatically rescinded.
Non-Affiliate Subordination Provisions
EXHIBIT E-2
[Form of Non-Affiliate Subordination Provisions]
Set forth below are certain definitions and the terms of subordination
that, pursuant to the last paragraph of Section 4.09 of the Indenture, are to be
applicable to certain Indebtedness incurred by the Credit Parties in accordance
with said Section 4.09. In addition to the terms set forth below, such
Indebtedness must provide that, unless a bankruptcy or insolvency event has
occurred, or the principal of and interest on the Notes under the Indenture
shall have been declared (or shall have become) due and payable, no acceleration
of such Indebtedness may occur without at least 30 days notice being given to
the Trustee.
ARTICLE ONE
DEFINITIONS
Section 1.01 Certain Definitions. For purposes of this Exhibit E-2,
terms used herein have the respective meanings assigned to them in the
Indenture.
"Debtholder" means the registered holders from time to time of the
Subordinated Debt Instruments.
"Designated Senior Indebtedness" means, collectively (i) the
obligations of the [Credit Parties] in respect of the Notes and the Note
Guarantees, (ii) the obligations of the [Credit Parties] in respect of the
Working Capital Facility and (iii) any other Senior Indebtedness in an aggregate
principal amount (or that may be issued pursuant to commitments in an aggregate
principal amount) of $50,000,000 or more.
"Permitted Junior Securities" means any securities (i) of the Company
that are equity securities without special covenants or (ii) of any [Credit
Party] that are debt securities expressly subordinated in right of payment to
all Senior Indebtedness that may at the time be outstanding, to substantially
the same extent as, or to a greater extent than, the Subordinated Debt
Instruments are subordinated as provided in this [Subordinated Debt Agreement],
in any event pursuant to a court order so providing and as to which such
securities shall not provide for amortization (including sinking fund and
mandatory prepayment provisions, other than change of control and asset sale
provisions similar to those in this [Subordinated Debt Agreement]) commencing
prior to the date 91 days following the final scheduled maturity date of the
Senior Indebtedness (as modified by the plan of reorganization or readjustment
pursuant to which such securities are issued).
"Senior Indebtedness" means (a) all indebtedness and other obligations
of the [Credit Party] under the [Notes] [Note Guarantee] and the Indenture (as
the same may be modified and supplemented from time to time, and including all
agreements extending, renewing or refinancing the same), (b) all indebtedness
and other obligations of the [Credit Party] under
Non-Affiliate Subordination Provisions
-2-
and in respect of the Working Capital Facility (as the same may be modified and
supplemented from time to time, and including all agreements extending, renewing
or refinancing the same), (c) all other Indebtedness of the [Credit Party] for
borrowed money, including principal, premium, if any, and interest on such
Indebtedness, if the instrument under which such obligations or Indebtedness of
the [Credit Party] for money borrowed is incurred expressly provides that such
obligations or Indebtedness for money borrowed is senior or superior in right of
payment to the Subordinated Debt Instruments (in each case, as the same may be
modified and supplemented from time to time, and including all agreements
extending, renewing or refinancing the same) and (d) all interest accruing after
the commencement of any bankruptcy or insolvency proceedings, whether or not
such interest is an allowed claim in such proceeding.
Notwithstanding the foregoing, Senior Indebtedness shall not include
(i) to the extent that it may constitute Indebtedness, any obligations for
Federal, state, local or other taxes; (ii) any Indebtedness among or between the
[Credit Party] and any Subsidiary of the Company; (iii) to the extent that it
may constitute Indebtedness, any obligation in respect of any trade payable
incurred for the purchase of goods or materials, or for services obtained, in
the ordinary course of business; (iv) that portion of any Indebtedness that is
incurred in violation of this [Subordinated Debt Agreement]; (v) Indebtedness
evidenced by the Subordinated Debt Instruments; (vi) Indebtedness of the [Credit
Party] that is expressly subordinate or junior in right of payment to any other
Indebtedness of the [Credit Party]; (vii) to the extent that it may constitute
Indebtedness, any obligation owing under leases (other than Capital Lease
Obligations and obligations under Attributable Debt) or management agreements;
and (viii) any obligation that by operation of law is subordinate to any general
unsecured obligations of the [Credit Party].
"Subordinated Debt Instrument" means the securities or other
agreements or instruments from time to time evidencing the [Indebtedness to be
subject to these Non-Affiliate Subordination Provisions].
["Subordinated Debt Trustee" means the trustee or agent, as the case
may be, under the [Subordinated Debt Agreement] and, where relevant, includes
any paying agent.]
ARTICLE TWO
SUBORDINATION OF SECURITIES
Section 2.01. Subordinated Debt Instruments Subordinated to Senior
Indebtedness.
The [Credit Party] covenants and agrees, and [the Subordinated Debt
Trustee and] each Debtholder of the Subordinated Debt Instruments by its
acceptance thereof likewise covenants and agrees, that all Subordinated Debt
Instruments shall be issued subject to the provisions of this Article Two; and
each person holding any Subordinated Debt Instruments, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that
all payments of the principal of and interest on the Subordinated Debt
Instruments by the [Credit Party] shall, to the extent and in the manner set
forth in this Article Two, be subordinated
Affiliate Subordination Provisions
-3-
and junior in right of payment to the prior payment in full in cash of all
amounts payable under Senior Indebtedness.
Section 2.02. No Payment on Subordinated Debt Instruments in
Certain Circumstances.
(a) Payment Blockage. No direct or indirect payment (excluding
any payment or distribution of Permitted Junior Securities) by or on behalf of
the [Credit Party] of principal of or interest on the Subordinated Debt
Instruments, whether pursuant to the terms of the Subordinated Debt Instruments,
upon acceleration, pursuant to an offer to purchase or otherwise, shall be made
if, at the time of such payment, there exists a default in the payment of all or
any portion of the obligations on any Designated Senior Indebtedness, whether at
maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Designated Senior
Indebtedness. In addition, during the continuance of any non-payment event of
default with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be immediately accelerated, and upon receipt by the
[Debtholders] [Subordinated Debt Trustee] of written notice (a "Payment Blockage
Notice") from the holder or holders of such Designated Senior Indebtedness or a
trustee or agent acting on behalf of such Designated Senior Indebtedness, then,
unless and until such non-payment event of default has been cured or waived or
has ceased to exist or such Designated Senior Indebtedness has been discharged
or repaid in full in cash or the benefits of these provisions have been waived
by the holders of such Designated Senior Indebtedness, no direct or indirect
payment (excluding any payment or distribution of Permitted Junior Securities)
shall be made by or on behalf of the [Credit Party] of principal of or interest
on the Subordinated Debt Instruments, to such holders, during a period (a
"Payment Blockage Period") commencing on the date of receipt of such notice by
[the Debtholders] [the Subordinated Debt Trustee] and ending 179 days
thereafter.
Notwithstanding anything herein or in the Subordinated Debt
Instruments to the contrary, (x) in no event shall a Payment Blockage Period
extend beyond 179 days from the date the Payment Blockage Notice in respect
thereof was given, (y) there shall be a period of at least 181 consecutive days
in each 360-day period when no Payment Blockage Period is in effect and (z) not
more than one Payment Blockage Period may be commenced with respect to the
Subordinated Debt Instruments during any period of 360 consecutive days. No
non-payment event of default that existed or was continuing on the date of
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period (to the extent the
holder of Designated Senior Indebtedness, or trustee or agent, giving notice
commencing such Payment Blockage Period had knowledge of such existing or
continuing event of default) may be, or be made, the basis for the commencement
of any other Payment Blockage Period by the holder or holders of such Designated
Senior Indebtedness or a trustee or agent acting on behalf of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such non-payment event of default has been cured or waived for a period
of not less than 90 consecutive days.
Affiliate Subordination Provisions
-4-
(b) Payments Held in Trust. In the event that,
notwithstanding the foregoing, either
(i) the [Credit Party] shall have made payment to [the
Subordinated Debt Trustee or] any Debtholder when such payment is
prohibited by Section 2.02(a), or
(ii) if during any Payment Blockage Period [the Subordinated
Debt Trustee or] any Debtholder shall receive any payment representing
the proceeds of a turnover to [the Subordinated Debt Trustee or] any
Debtholder of a payment made in respect of an obligation that is
subordinated to the Subordinated Debt Instruments,
then in each such case such payment shall be held in trust for the benefit of,
and shall be paid over or delivered by [the Subordinated Debt Trustee (if the
notice required by Section 2.06 has been received by the Subordinated Debt
Trustee) or] such Debtholder to, holders of Designated Senior Indebtedness or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Designated Senior Indebtedness may have
been issued, as their respective interests may appear[, but only to the extent
that, upon notice from the Subordinated Debt Trustee to the holders of
Designated Senior Indebtedness that such prohibited payment has been made, the
holders of the Designated Senior Indebtedness (or their representative or
representatives or a trustee or trustees) notify the Subordinated Debt Trustee
in writing of the amounts then due and owing on the Designated Senior
Indebtedness, if any, and only the amounts specified in such notice to the
Subordinated Debt Trustee shall be paid to the holders of Designated Senior
Indebtedness]/2/.
Section 2.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Payment Over upon Dissolution. Upon any payment or
distribution of assets or securities of the [Credit Party] of any kind or
character, whether in cash, property or securities (excluding any payment or
distribution of Permitted Junior Securities), upon any dissolution or winding-up
or total liquidation or reorganization of the [Credit Party], whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all Senior Indebtedness shall first be paid in full in cash before the holders
of the Subordinated Debt Instruments [or the Subordinated Debt Trustee on behalf
of such holders] shall be entitled to receive any payment by the [Credit Party]
of the principal of or interest on the Subordinated Debt Instruments, or any
payment by the [Credit Party] to acquire any of the Subordinated Debt
Instruments for cash, property or securities, or any distribution with respect
to the Subordinated Debt Instruments of any cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities). Before
any payment may be made by, or on behalf of, the [Credit Party] of the principal
of or interest on the Subordinated Debt Instruments upon any such dissolution or
winding-up or total liquidation or reorganization, any payment or distribution
of assets or securities of the [Credit Party] of any kind or character, whether
in cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities), to which the holders of the Subordinated Debt
Instruments [or the Subordinated Debt Trustee on their behalf]
-------------
/2/ Bracketed clause for insertion in deals with a Subordinated Debt Trustee.
Affiliate Subordination Provisions
-5-
would be entitled, but for the subordination provisions of this [Subordinated
Debt Agreement], shall be made by the [Credit Party] or by any receiver, trustee
in bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders) or their representatives or to the trustee or trustees or agent
or agents under any agreement or [Subordinated Debt Agreement] pursuant to which
any of such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) Payments Held in Trust. In the event that, notwithstanding
the foregoing provision prohibiting such payment or distribution, if before all
obligations in respect of Senior Indebtedness are paid in full in cash either
(i) any payment or distribution of assets or securities of the
[Credit Party] of any kind or character, whether in cash, property or
securities (excluding any payment or distribution of Permitted Junior
Securities), shall be paid by the [Credit Party] to [the Subordinated
Debt Trustee or] any holder of the Subordinated Debt Instruments or
(ii) [the Subordinated Debt Trustee or] any Debtholder shall
receive any payment representing the proceeds of a turnover to [the
Subordinated Debt Trustee or] any Debtholder of a payment made in
respect of an obligation that is subordinated to the Subordinated Debt
Instruments,
in either case at a time when such payment or distribution is prohibited by
Section 2.03(a), such payment or distribution shall be received and held in
trust for the benefit of, and shall be paid over or delivered by [the
Subordinated Debt Trustee (if the notice required by Section 2.06 has been
received by the Subordinated Debt Trustee at least two Business Days prior to
receipt of such payment or distribution) or] such Debtholder to, the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the payment
of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has
been paid in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
The consolidation of the [Credit Party] with, or the merger of
the [Credit Party] with or into, another corporation or the liquidation of the
[Credit Party] following the conveyance or transfer of its property as an
entirety, or substantially as an entity, to another corporation upon the terms
and conditions provided in Article [____] [Successors] shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 2.03 if such other corporation shall, as a party of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
[____] [Successors].
Affiliate Subordination Provisions
-6-
Section 2.04. Subrogation.
Upon the payment in full in cash of all Senior Indebtedness,
or provision for payment, the holders of the Subordinated Debt Instruments shall
be subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the [Credit Party]
made on such Senior Indebtedness until the principal of and interest on the
Subordinated Debt Instruments shall be paid in full in cash; and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the holders of
the Subordinated Debt Instruments [or the Subordinated Debt Trustee on their
behalf] would be entitled except for the provisions of this Article Two, and no
payment over pursuant to the provisions of this Article Two to the holders of
Senior Indebtedness by holders of the Subordinated Debt Instruments [or the
Subordinated Debt Trustee on their behalf] shall, as between the [Credit Party],
its creditors other than holders of Senior Indebtedness, and the holders of the
Subordinated Debt Instruments, be deemed to be a payment by the [Credit Party]
to or on account of the Senior Indebtedness. It is understood that the
provisions of this Article Two are and are intended solely for the purpose of
defining the relative rights of the holders of the Subordinated Debt
Instruments, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
If any payment or distribution to which the holders of the
Subordinated Debt Instruments would otherwise have been entitled but for the
provisions of this Article Two shall have been applied, pursuant to the
provisions of this Article Two, to the payment of all amounts payable under
Senior Indebtedness, then and in such case, the holders of the Subordinated Debt
Instruments shall be entitled to receive from the holders of such Senior
Indebtedness any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount required to make payment in full in cash of
such Senior Indebtedness.
Section 2.05. Obligations of [Credit Party] Unconditional.
Nothing contained in this Article Two or elsewhere in this
[Subordinated Debt Agreement] or in the Subordinated Debt Instruments is
intended to or shall impair, as among the [Credit Party] and the holders of the
Subordinated Debt Instruments, the obligation of the [Credit Party], which is
absolute and unconditional, to pay the holders of the Subordinated Debt
Instruments the principal of and interest on the Subordinated Debt Instruments
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the holders of
the Subordinated Debt Instruments and creditors of the [Credit Party] other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the holders of any Subordinated Debt Instrument [or the Subordinated
Debt Trustee on their behalf] from exercising all remedies otherwise permitted
by applicable law upon default under this [Subordinated Debt Agreement], subject
to the rights, if any, under this Article Two of the holders of the Senior
Indebtedness in respect of cash, property or securities of the [Credit Party]
received upon the exercise of any such remedy.
Affiliate Subordination Provisions
-7-
Without limiting the generality of the foregoing, nothing
contained in this Article Two shall restrict the right of [the Subordinated Debt
Trustee or] the holders of Subordinated Debt Instruments to take any action to
declare the Subordinated Debt Instruments to be due and payable prior to their
stated maturity or to pursue any rights or remedies hereunder; provided,
however, that all Senior Indebtedness then due and payable shall first be paid
in full in cash before the holders of the Subordinated Debt Instruments [or the
Subordinated Debt Trustee on their behalf] are entitled to receive any direct or
indirect payment from the [Credit Party] of principal of or interest on the
Subordinated Debt Instruments.
Section 2.06. Notice to [Debtholders] [Subordinated Debt
Trustee].
The [Credit Party] shall give prompt written notice to the
[Debtholders] [Subordinated Debt Trustee] of any fact known to the [Credit
Party] which would prohibit the making of any payment to [the Debtholders] [or
by the Subordinated Debt Trustee] in respect of the Subordinated Debt
Instruments pursuant to the provisions of this Article Two. The [Debtholders]
[Subordinated Debt Trustee] shall not be charged with knowledge of the existence
of any event of default with respect to any Senior Indebtedness or of any other
facts which would prohibit the making of any payment to [the Debtholders] [or by
the Subordinated Debt Trustee] unless and until the [Debtholders] [Subordinated
Debt Trustee] shall have received notice in writing at ___________ to that
effect signed by a [designated officer] of the [Credit Party], or by a holder of
Senior Indebtedness or trustee or agent therefor; and prior to the receipt of
any such written notice, the [Debtholders] [Subordinated Debt Trustee] shall be
entitled to assume that no such facts exist[; provided, however, that if the
Subordinated Debt Trustee shall not have received the notice provided for in
this Section 2.06 at least two Business Days prior to the date upon which by the
terms of this [Subordinated Debt Agreement] any moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of or
interest on any Subordinated Debt Instrument), then, regardless of anything
herein to the contrary, the Subordinated Debt Trustee shall have full power and
authority to receive any moneys from the [Credit Party] and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior
date]./3/ Nothing contained in this Section 2.06 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by Section
2.03. The Subordinated Debt Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or itself to be a holder
of any Senior Indebtedness (or a trustee on behalf of, or other representative
of, such holder) to establish that such notice shall been given by a holder of
such Senior Indebtedness or a trustee or representative on behalf of any such
holder.
In the event that [any Debtholder] [the Subordinated Debt
Trustee] determines in good faith that any evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Two, [such Debtholder] [the
Subordinated Debt Trustee] may request such Person to furnish evidence to the
reasonable satisfaction of [such Debtholder] [the Subordinated Debt Trustee] as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled
-------------
/3/ Bracketed clause for insertion in deals with a Subordinated Debt Trustee.
Affiliate Subordination Provisions
-8-
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Two, and if such evidence is not
furnished, [such Debtholder] [the Subordinated Debt Trustee] may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 2.07. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities
referred to in this Article Two, the [Subordinated Debt Trustee and the] holders
of the Subordinated Debt Instruments shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
[the Subordinated Debt Trustee or] the holder of the Subordinated Debt
Instruments for the purpose of ascertaining the person entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the [Credit Party], the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Two.
Section 2.08. Subordination Rights Not Impaired by Acts or
Omissions of the [Credit Party] or holders of
Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the [Credit Party] or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the [Credit Party] with the terms of this
[Subordinated Debt Agreement], regardless of any knowledge thereof which any
such holder may have or otherwise be charged with. The provisions of this
Article Two are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
Section 2.09. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Subordinated Debt Instruments by reason of any provision of this
Article Two shall not be construed as preventing the occurrence of an Event of
Default specified in [payment default Sections].
Section 2.10. No Waiver of Subordination Provisions.
Without in any limiting the generality of Section 2.08, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to [the Subordinated Debt Trustee or] the holders of
the Subordinated Debt Instruments, without incurring responsibility to the
holders of the Subordinated Debt Instruments and without impairing or releasing
the subordination provided in this Article Two or the obligations hereunder of
the holders of the Subordinated Debt Instruments to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner, place
or terms of
Affiliate Subordination Provisions
-9-
payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
secured Senior Indebtedness; (c) release any Person liable in any manner
for the collection of Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the [Credit Party] and any other Person.
Section 2.11. Acceleration of Subordinated Debt Instruments.
If payment of the Subordinated Debt Instruments is accelerated
because of an Event of Default, the [Credit Party] shall promptly notify holders
of the Senior Indebtedness of the acceleration.
[Section 2.12. Subordinated Debt Trustee's Relation to Senior
Indebtedness.
The Subordinated Debt Trustee shall be entitled to all the
rights set forth in this Article Two with respect to any Senior Indebtedness
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Indebtedness, and nothing in this
[Subordinated Debt Agreement] shall deprive the Subordinated Debt Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Subordinated Debt Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in Article Two, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this [Subordinated Debt Agreement] against the
Subordinated Debt Trustee. The Subordinated Debt Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness (except as provided
in Section 2.03(b)). The Subordinated Debt Trustee shall not be liable to any
such holders if the Subordinated Debt Trustee shall in good faith mistakenly pay
over or distribute to holders of Subordinated Debt Instruments or to the [Credit
Party] or to any other person cash, property or securities to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article Two or
otherwise.
Section 2.13. Debtholders Authorize Subordinated Debt Trustee
To Effectuate Subordination of Subordinated Debt
Instruments.
Each holder of Subordinated Debt Instruments by its acceptance
of such Subordinated Debt Instruments authorizes and expressly directs the
Subordinated Debt Trustee on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article Two, and
appoints the Subordinated Debt Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, total liquidation or
reorganization of the [Credit Party] (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the [Credit Party], the filing of a claim for the unpaid
balance of its Subordinated Debt Instruments in the form required in those
proceedings.
Affiliate Subordination Provisions
-10-
Section 2.14. Subordinated Debt Trustee's Compensation Not
Prejudiced.
Nothing in this Article Two shall apply to amounts due to the
Subordinated Debt Trustee pursuant to other sections in this [Subordinated Debt
Agreement].
Section 2.15. Subordination Provisions Not Applicable to Money
Held in Trust for Debtholders; Payments May be
Paid Prior to Dissolution.
Nothing contained in this Article Two or elsewhere in this [Subordinated Debt
Agreement] shall prevent (i) the [Credit Party], except under the conditions
described in Section 2.02, from making payments of principal of and interest on
the Subordinated Debt Instruments or from depositing with the Subordinated Debt
Trustee any moneys for such payments or from effecting a termination of the
[Credit Party]'s obligations under the Subordinated Debt Instruments and this
[Subordinated Debt Agreement] as provided in Article [___]
[Discharge/Defeasance], or (ii) the application by the Subordinated Debt Trustee
of any moneys deposited with it for the purpose of making such payments of
principal of and interest on the Subordinated Debt Instruments, to the
Debtholders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Subordinated Debt Trustee
shall have received the written notice provided for in Section 2.02(b) or in
Section 2.06. The [Credit Party] shall give prompt written notice to the
Subordinated Debt Trustee of any dissolution, winding-up, liquidation or
reorganization of the [Credit Party].]/4/
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/4/ Sections 2.12 through 2.15 for insertion in deals with a Subordinated Debt
Trustee.
Affiliate Subordination Provisions
EXHIBIT F
[Issue Date Deliverables]
As a condition precedent to the execution and delivery by the
Trustee on the Issue Date of the Indenture and the Security Documents referred
to below, the Trustee shall have received the following, each of which shall be
approved by the Administrative Agent (with the approval of the Majority Lenders)
under the Credit Agreement and to the Official Creditors' Committee (as
confirmed in writing to the Trustee by a representative of the Administrative
Agent and the Official Creditors' Committee):
(a) Execution of Indenture. A copy of the Indenture executed
by each of the Credit Parties.
(b) Execution of Security Documents. From each Credit Party, a
duly executed copy of the Security Agreement and, with respect to each
Credit Party, such additional Security Documents as are contemplated by
the last paragraph of Section 3 of the Security Agreement with respect
to Collateral of such Credit Party, provided that, as contemplated by
Section 6.02 of the indenture, determinations by the Administrative
Agent and the Official Creditors' Committee with respect to actions to
be taken on the Issue Date with respect to creating, perfecting and
making enforceable Liens on Property of the Credit Parties as described
in Section 3 of the Security Agreement, as qualified by said Section
6.02, shall be made by the Administrative Agent and the Official
Creditors' Committee in their reasonable discretion taking into account
the intent of the Indenture and the Security Documents that the Trustee
have valid, perfected and enforceable Liens on substantially all of the
Property of the Credit Parties wherever located and whenever existing.
(c) Corporate Documents. For each Credit Party, a copy of its
charter, bylaws or other organizational documents, as in effect on the
Issue Date, duly certified by the Secretary, an Assistant Secretary or
a Director thereof, together with in each case of copy of the
resolutions or other director, shareholder or corporate action taken by
such Credit Party to authorize the execution, delivery and performance
by such Credit Party of this Indenture and the Security Documents to
which such Credit Party is to be a party.
(d) Opinions of Counsel.
(i) United States Jurisdictions.
(1) U.S. Credit Parties. In the case of each Credit Party
organized under the law of a State of the United States
(herein, a "U.S. Credit Party"), one or more opinions of
counsel to each such Credit Party in New York, and each other
applicable jurisdiction in the United States, as to (x) the
valid existence of such Credit Party, and power to execute,
deliver and perform this Indenture and the Security Documents
to be executed and delivered by such Credit Party, (y) the
Issue Date Deliverables
-2-
due authorization, execution and delivery of this Indenture
and the Security Documents by such Credit Party and (z) the
absence of any required approval of, filing with or any other
action by any Federal or State governmental authority with
respect to the execution, delivery and performance by such
Credit Party of this Indenture and the Security Documents,
such opinions to be delivered by counsel satisfactory to the
Administrative Agent and the Official Creditors' Committee.
(2) All Credit Parties. In the case of each Credit
Party (assuming due authorization, execution and delivery
thereof in the case of any non-U.S. Credit Party), one or more
opinions of counsel to each such Credit Party in New York as
to (x) the validity and enforceability of this Indenture and
the Security Agreement and (y) the validity, enforceability,
priority (with respect to priority, unless determined by the
Administrative Agent and the Official Creditors' Committee to
be non-customary) and perfection of the Liens granted to the
Trustee under the Security Agreement, in the case of each of
the foregoing clauses (1) and (2), with such exceptions,
exclusions and qualifications as shall be satisfactory to the
Administrative Agent under the Credit Agreement and to the
Official Creditors' Committee, such opinions to be delivered
by counsel satisfactory to the Administrative Agent and the
Official Creditors' Committee.
(ii) Foreign Jurisdictions. An opinion of each counsel with
respect to each non-U.S. Credit Party as to (1) the valid existence of
such Credit Party, and power to execute, deliver and perform this
Indenture and the Security Documents to be executed and delivered by
such Credit Party, (2) the due authorization, execution and delivery of
this Indenture and the Security Documents to be executed and delivered
by such Credit Party, (3) the absence of any required approval of,
filing with or any other action by any governmental authority in any
jurisdiction of or applicable to such Credit Party with respect to the
execution, delivery and performance by such Credit Party of this
Indenture and the Security Documents to be executed and delivered by
such Credit Party, (4) the validity and enforceability of the Security
Documents executed and delivered by such Credit Party and (5) the
validity, enforceability, priority and perfection of the Liens granted
to the Trustee under the Security Documents executed and delivered by
such Credit Party, in the case of each of the foregoing clauses (1)
through (5), with such exceptions, exclusions and qualifications as
shall be satisfactory to the Administrative Agent under the Credit
Agreement and to the Official Creditors' Committee, such opinions to be
delivered by counsel satisfactory to the Administrative Agent and the
Official Creditors' Committee.
(e) Perfection Actions. Evidence that each Credit Party shall
have filed such financing statements and other documents in such
offices in the United States and in such foreign jurisdictions as shall
be applicable to such Credit Party, and taken such other actions, as
shall be necessary to perfect the Liens created pursuant to the
Security Agreement and each of the other Security Documents to which
such Credit Party is a party, including (i) delivered to the Trustee
originals of the certificates evidencing any
Issue Date Deliverables
-3-
Equity Interests owned by any Credit Party, accompanied by undated
stock powers duly executed in blank (including those Equity Interests
identified in Annex 1 to this Exhibit F), (ii) recorded such Liens in
the appropriate stock or other equity registers of such Credit Party to
the extent necessary under any foreign law applicable to such Credit
Party in order to perfect such Liens and (iii) delivered to the Trustee
originals of any promissory notes or other Instruments held by any of
the Credit Parties to the extent required by the Security Agreement,
together with any related guarantees or security instruments (including
those Instruments and related guarantees and security instruments
identified on Annex 2 to this Exhibit F), provided that the actions
required under this clause (e) shall be subject to the same
qualifications referred to in the proviso to clause (b) above.
(f) Insurance. Certificates of insurance evidencing the
existence of all casualty and business interruption insurance
maintained by the Credit Parties, and evidence of the designation of
the Trustee as the loss payee or additional named insured, as the case
may be, thereunder.
(g) Bankruptcy Orders; Consummation of Reorganization Plan.
Evidence that the United States Bankruptcy Court for the District of
Delaware shall have entered orders confirming the Plan and Schemes of
Arrangement without amendment from the form of the Plan and Schemes of
Arrangement approved by the Bankruptcy Court and Bermuda Court on
December 4, 2002, other than such amendments thereto as shall be
satisfactory to the Administrative Agent under the Credit Agreement and
to the Official Creditors' Committee. Each of such orders shall be in
full force and effect and none of such orders shall be subject to any
appeal or stay, and the Debtors shall have emerged (or be
simultaneously emerging) from the cases initiated under the Bankruptcy
Code and under the law of Bermuda and shall have consummated (or shall
be simultaneously consummating) the Plan in accordance with the terms
thereof with such amendments thereto as shall be satisfactory to the
Administrative Agent under the Credit Agreement and to the Official
Creditors' Committee.
(h) Perfection Certificate. A Perfection Certificate in the
form of Annex 3 to this Exhibit F, duly completed, signed by two
Officers of the Company, complying with the requirements of the
Indenture and including the statements provided for in Section 12.04 of
the Indenture.
(i) Officers' Certificate. An Officers' Certificate (i) to the
effect that (A) no Default or Event of Default has occurred and is
continuing on the Issue Date and (B) each of the conditions set forth
in this Exhibit F have been satisfied on the Issue Date (to the extent
required to be satisfied on the Issue Date) and (ii) setting forth
schedules identifying all Indebtedness, Liens and Investments
outstanding on September 30, 2002, and all Indebtedness, Liens and
Investments Incurred or made during the period between September 30,
2002 and the Issue Date.
(j) [additional documents to be specified]
Issue Date Deliverables
ANNEX 1 to Exhibit F
[List of Certificates Evidencing Equity Interests]
[To be completed]
Issue Date Deliverables
ANNEX 2 TO Exhibit F
[List of Instruments]
[To be completed]
Issue Date Deliverables
ANNEX 3 TO Exhibit F
[Perfection Certificate]
[To be completed]
Issue Date Deliverables
EXHIBIT G
[Form of Officers' Certificate pursuant to Section 6.05(c)]
GLOBAL CROSSING NORTH AMERICA, INC.
Officers' Certificate
Pursuant to Section 6.05(c) and Section 12.04 of the Indenture
dated as of [ ] among GLOBAL CROSSING NORTH AMERICA, INC., a New York
corporation (the "Issuer"), [NEW GLOBAL CROSSING ENTITY], a [ ] (the
"Company") and ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (the "Trustee"),
as amended, supplemented or restated from time to time in accordance with the
provisions thereof (the "Indenture"), the undersigned, [Officer] and [Officer],
[Chairman of the Board/President/Chief Financial Officer/Senior Vice
President/Vice President/Treasurer/Secretary] and [Chairman of the
Board/President/Chief Financial Officer/Senior Vice President/Vice
President/Treasurer/Secretary] of the Company, respectively, DO HEREBY CERTIFY
that:
(a) I have read the applicable provisions of the Indenture,
including Section 6.05 thereof. I have also examined such
corporate records and other documents and satisfied myself as
to such other matters as I have deemed necessary to enable me
to express informed opinions as to the matters covered by this
certificate, including as to whether the provisions in Section
6.05(c) to which this certificate relates have been complied
with; and
(b) In my opinion, the particular Collateral that is the subject
of the Issuer Order accompanying this Officers' Certificate
and requesting confirmation by the Trustee in writing of the
release of the Lien of the Indenture and the Security
Documents, as more fully set out in Section 6.05(c) of the
Indenture, were sold in the ordinary course of business and
Section 6.05(c) of the Indenture has been complied with in
this regard.
Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Indenture.
Officers' Certificate
-2-
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this __ day of ______, _____.
__________________________________________
Name:
Title:
__________________________________________
Name:
Title:
Officers' Certificate
