EXHIBIT 4.3
8 7/8% Series B Senior Subordinated Notes due February 1, 2008
No. 001 $
CUSIP #
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS COMPANY
promises to pay to Cede & Co. or registered assigns,
the principal sum of _______________________________________________
____________________________________________________________________
Dollars on February 1, 2008.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Dated: ____________, 1998
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS COMPANY
By:______________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By:______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
(SEAL)
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:__________________________________
Name:
Title:
8 7/8% Series B Senior Subordinated Notes due February 1, 2008
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
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be 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.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. ▇▇▇▇▇▇▇▇▇▇ Communications Company, a Delaware corporation
("ACC" or the "Company"), promises to pay interest on the principal amount of
this Note at the rate of 8 7/8% per annum from January 22, 1998 until maturity.
ACC will pay interest semi-annually on February 1 and August 1 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date, and;
provided, further, that the first Interest Payment Date shall be August 1, 1998.
ACC shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time
on demand at a rate that is 1% per annum in excess of the rate then in effect;
ACC shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. Method of Payment. ACC will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the January 15 or July 15 next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.13 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium and interest at the office or agency of ACC maintained for
such purpose within or without the City and State of New York, or, at the option
of ACC, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest and premium on, all Global Notes and all other Notes
the Holders of $5,000,000 or more in aggregate principal amount of which shall
have provided wire transfer instructions to ACC or the Paying Agent; Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. ACC may change any Paying Agent or Registrar without notice to any
Holder. ACC or any of its Restricted Subsidiaries may act in any such capacity.
4. Indenture. ACC issued the Notes under an Indenture dated as of
January 22, 1998 (the "Indenture") between ACC and the Trustee. The terms of the
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such terms
and Holders are referred to the Indenture and the TIA for a statement of such
terms. The Notes are general senior subordinated obligations of ACC limited to
$150,000,000 in aggregate principal amount.
5. Subordination. The payment of principal of, premium, if any, and
interest on the Notes shall be subordinated in right of payment as set forth in
the Indenture, to the prior payment in full of all Senior Debt, whether
outstanding on the date of the Indenture or thereafter incurred.
6. Optional Redemption.
(a) Except as set forth in subparagraphs (b) and (c) below of this
Paragraph 6, ACC shall not have the option to redeem the Notes prior to February
1, 2003. Thereafter, ACC shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, if any, to the applicable date of
redemption, if redeemed during the twelve-month period beginning on February 1
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003...................................... 104.438%
2004...................................... 102.958%
2005...................................... 101.479%
2006 and thereafter....................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph
6, at any time on or prior to February 1, 2001, ACC shall have the option to
redeem up to 35% of the aggregate principal amount of the Notes originally
issued on the Issuance Date at a redemption price equal to 108.875% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the applicable date of redemption, with the net proceeds of one or more
public offerings of ACC Common Stock; provided that at least 65% of the
aggregate principal amount of the Notes originally issued on the Issuance Date
remains outstanding immediately after the occurrence of such redemption and;
provided further, that each such redemption shall occur within 60 days of the
date of the closing of the applicable public offering.
(c) At any time prior to February 1, 2003, upon a Change of Control, ACC
shall have the option to redeem the Notes, in whole or in part, upon not less
than 30 days' notice, within 180 days of such Change of Control, at a redemption
price equal to the sum of (i) the principal amount thereof, plus (ii) accrued
and unpaid interest thereon, if any, to the applicable date of redemption, plus
(iii) the Applicable Premium.
7. Mandatory Redemption.
ACC shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
8. Repurchase at the Option of Holder.
(a) If there is a Change of Control, unless irrevocable notice of
redemption for all of the Notes is given within 30 days after the occurrence of
such Change of Control in accordance with the provisions of Article Three of the
Indenture, ACC shall be required to make an offer (a "Change of Control Offer")
to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of each Holder's Notes at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the date of
purchase (the "Change of Control Payment"). On the last Business Day of the
fiscal quarter of ACC next following the occurrence of a Change of Control, ACC
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture. Prior to the commencement
of a Change of Control Offer, but in any event within 90 days after the
occurrence of a Change of Control, ACC shall (a) to the extent then required to
be repaid, repay in full all outstanding Senior Debt, or (b) obtain the
requisite consents, if any, under agreements governing all such Senior Debt to
permit the redemption of Notes as provided for in Section 4.15 of the Indenture.
ACC shall first comply with the requirements of the preceding sentence before it
shall be required to repurchase Notes pursuant to Section 4.15 of the Indenture.
(b) If ACC or a Restricted Subsidiary consummates any Asset Sales, within
five Business Days of each date on which the aggregate amount of Excess Proceeds
exceeds $5.0 million, ACC shall commence an offer to all Holders of Notes and
all holders of Pari Passu Debt (an "Asset Sale Offer") pursuant to Section 3.10
of the Indenture to purchase the maximum principal amount of Notes and any Pari
Passu Debt that may be purchased out of the Excess Proceeds, at an offer price
in cash in an amount equal to 100% of the principal amount (or accreted value,
as applicable) thereof, plus accrued and unpaid interest thereon, if any, to the
date of purchase, in accordance with the procedures set forth in the Indenture
and the agreements governing such Pari Passu Debt, as applicable. To the extent
that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, ACC (or such Restricted
Subsidiary, as the case may be) may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes and Pari
Passu Debt surrendered by the holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and Pari Passu Debt to be purchased
on a pro rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from ACC prior to any related purchase
date and may elect to have such Notes purchased by completing the form titled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
9. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date, interest ceases to accrue on Notes or portions
thereof called for redemption.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate
endorsements and transfer documents and ACC may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. ACC need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, ACC need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of ACC's obligations to Holders of the Notes in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: (i) the failure by
ACC to pay interest on any of the Notes when the same becomes due and payable
and the continuance of any such failure for 30 days (whether or not prohibited
by Article 10 of the Indenture); (ii) the failure by ACC to pay principal of or
premium, if any, on any of the Notes when and as the same shall become due and
payable at maturity, upon acceleration, optional or mandatory redemption,
required repurchase or otherwise (whether or not prohibited by Article 10 of the
Indenture); (iii) the failure by ACC to comply with any of the provisions of
Sections 4.07, 4.09 or 5.01 of the Indenture and continuance of such failure for
30 days after written notice is given to ACC by the Trustee or to ACC and the
Trustee by the Holders of 25% in aggregate principal amount of the Notes then
outstanding; (iv) the failure by ACC to comply with any of its other agreements
or covenants in the Notes or the Indenture and continuance of such failure for
60 days after written notice is given to ACC by the Trustee or to ACC and the
Trustee by the Holders of 25% in aggregate principal amount of the Notes then
outstanding; (v) an event of default occurs under any mortgage, indenture or
other instrument governing any Debt of ACC or any of its Restricted Subsidiaries
for borrowed money, whether such Debt now exists or shall hereafter be created,
if (a) such event of default results from the failure to pay at maturity $5.0
million or more in principal amount of such Debt or (b) as a result of such
event of default the maturity of $5.0 million or more in principal amount of
such Debt has been accelerated prior to its stated maturity; (vi) any final
judgments aggregating $5.0 million or more are rendered against ACC or any of
its Restricted Subsidiaries that remain undischarged for a period (during which
execution shall not be effectively stayed) of 60 days; (vii) certain events of
bankruptcy, insolvency or reorganization of ACC or any of its Restricted
Subsidiaries; and (viii) the failure by ACC to redeem the 11 1/2% Debentures
within 60 days of the Issuance Date. The Trustee must, within 90 days after the
occurrence of a Default or Event of Default, give to the Holders notice of all
uncured Defaults or Events of Default known to it; provided that, except in the
case of a Default or Event of Default in payment on any Note, the Trustee may
withhold such notice if a committee of its Responsible Officers in good faith
determines that the withholding of such notice is in the interest of the
Holders. ACC is required to furnish annually to the Trustee a certificate as to
its compliance with the terms of the Indenture.
14. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for ACC or its Affiliates, and may otherwise deal with ACC or its Affiliates, as
if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator, stockholder or Affiliate of ACC, as such, shall not have any
liability for any obligations of ACC under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
16. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, ACC has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
ACC will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Suite 300
Washington, D.C. 20006-3903
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of ACC. The agent may substitute another to
act for him.
________________________________________________________________________________
Date:___________________
Your Signature:________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by ACC 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 ACC
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased: $___________
Date:____________ Your Signature:____________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:____________________
Signature Guarantee.
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
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