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EXHIBIT 4.1
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TELEHUB COMMUNICATIONS CORPORATION,
as Issuer,
AND
TELEHUB NETWORK SERVICES CORPORATION,
as Guarantor,
AND
TELEHUB TECHNOLOGIES CORPORATION,
as Guarantor,
AND
TELEHUB LEASING CORPORATION,
as Guarantor,
AND
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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$125,000,000
SERIES A AND SERIES B
13 7/8% SENIOR DISCOUNT NOTES DUE 2005
------------------
INDENTURE
Dated as of July 30, 1998
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
----------------- ----------------
310(a)(1)...................................................... 7.10
(a)(2)......................................................... 7.10
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(a)(5)......................................................... 7.10
(b)............................................................ 7.8; 7.10
(c)............................................................ N.A.
311(a)......................................................... 7.11
(b)............................................................ 7.11
(c)............................................................ N.A.
312(a)......................................................... 2.5
(b)............................................................ 11.3
(c)............................................................ 11.3
313(a)......................................................... 7.6
(b)(1)......................................................... N.A.
(b)(2)......................................................... 7.6
(c)............................................................ 7.6
(d)............................................................ 7.6
314(a)......................................................... 4.3; 4.4
(b)............................................................ N.A.
(c)(1)......................................................... 11.4
(c)(2)......................................................... 11.4
(c)(3)......................................................... N.A.
(d)............................................................ N.A.
(e)............................................................ 11.5
(f)............................................................ N.A.
315(a)......................................................... 7.1(2)
(b)............................................................ 7.5
(c)............................................................ 7.1(1)
(d)............................................................ 7.1(3)
(e)............................................................ 6.11
316(a)(last sentence).......................................... 2.9
(a)(1)(A)...................................................... 6.5
(a)(1)(B)...................................................... 6.4
(a)(2)......................................................... N.A.
(b)............................................................ 6.7
(c)............................................................ 9.4
317(a)(1)...................................................... 6.8
(a)(2)......................................................... 6.9
(b)............................................................ 2.4
318(a)......................................................... 11.1
(b)............................................................ N.A.
(c)............................................................ 11.1
---------------------------
N.A. means not applicable
*This Cross-Reference Table is not part of this Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.........................................................................................2
SECTION 1.2. Other Definitions..................................................................................16
SECTION 1.3. Incorporation by Reference of Trust Indenture Act..................................................17
SECTION 1.4. Rules of Construction..............................................................................17
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating....................................................................................18
SECTION 2.2. Execution and Authentication.......................................................................19
SECTION 2.3. Registrar and Paying Agent.........................................................................20
SECTION 2.4. Paying Agent to Hold Assets in Trust...............................................................20
SECTION 2.5. Holder Lists.......................................................................................21
SECTION 2.6. Transfer and Exchange..............................................................................21
SECTION 2.7. Replacement Notes..................................................................................30
SECTION 2.8. Outstanding Notes..................................................................................31
SECTION 2.9. Treasury Notes.....................................................................................31
SECTION 2.10. Temporary Notes...................................................................................31
SECTION 2.11. Cancellation......................................................................................32
SECTION 2.12. Defaulted Interest................................................................................32
SECTION 2.13. CUSIP Number......................................................................................32
SECTION 2.14. Deposit of Moneys.................................................................................32
SECTION 2.15. Liquidated Damages Under Registration Rights Agreement............................................33
ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.1. Notice to Trustee..................................................................................33
SECTION 3.2. Selection of Notes to be Redeemed..................................................................33
SECTION 3.3. Notice of Redemption...............................................................................34
SECTION 3.4. Effect of Notice of Redemption.....................................................................35
SECTION 3.5. Deposit of Redemption Price........................................................................35
SECTION 3.6. Notes Redeemed in Part.............................................................................35
SECTION 3.7. Optional Redemption................................................................................36
SECTION 3.8. Mandatory Redemption...............................................................................36
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds................................................37
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ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Notes...................................................................................39
SECTION 4.2. Maintenance of Office or Agency....................................................................39
SECTION 4.3. Reports ...........................................................................................40
SECTION 4.4. Compliance Certificate.............................................................................40
SECTION 4.5. Taxes ...........................................................................................41
SECTION 4.6. Stay, Extension and Usury Laws.....................................................................41
SECTION 4.7. Company and Corporate Existence and Maintenance
of Properties and Insurance................................................................41
SECTION 4.8. Limitation on the Incurrence of Indebtedness.......................................................42
SECTION 4.9. Limitation on Restricted Payments..................................................................44
SECTION 4.10. Limitation on Liens................................................................................46
SECTION 4.11. Limitation on Transactions with Affiliates.........................................................46
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.......................46
SECTION 4.13. Business Activities................................................................................47
SECTION 4.14. Asset Sales........................................................................................47
SECTION 4.15. Change of Control..................................................................................48
SECTION 4.16. Payments for Consent...............................................................................50
SECTION 4.17. Limitation on Issuances and Sales of Capital Stock of Subsidiaries ................................51
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Merger, Consolidation or Sale of Assets..............................................51
SECTION 5.2. Successor Person Substituted.......................................................................52
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default..................................................................................53
SECTION 6.2. Acceleration.......................................................................................55
SECTION 6.3. Other Remedies.....................................................................................55
SECTION 6.4. Waiver of Past Defaults............................................................................55
SECTION 6.5. Control by Majority................................................................................56
SECTION 6.6. Limitation on Suits................................................................................56
SECTION 6.7. Rights of Holders to Receive Payment...............................................................56
SECTION 6.8. Collection Suit by Trustee.........................................................................57
SECTION 6.9. Trustee May File Proofs of Claim...................................................................57
SECTION 6.10. Priorities.........................................................................................57
SECTION 6.11. Undertaking for Costs..............................................................................58
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ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee..................................................................................58
SECTION 7.2. Rights of Trustee..................................................................................59
SECTION 7.3. Definitive Rights of Trustee.......................................................................60
SECTION 7.4. Trustee's Disclaimer...............................................................................60
SECTION 7.5. Notice of Defaults.................................................................................60
SECTION 7.6. Reports by Trustee to Holders......................................................................60
SECTION 7.7. Compensation and Indemnity.........................................................................61
SECTION 7.8. Replacement of Trustee.............................................................................62
SECTION 7.9. Successor Trustee by Merger, etc...................................................................63
SECTION 7.10. Eligibility; Disqualification......................................................................63
SECTION 7.11. Preferential Collection of Claims Against Company..................................................63
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance...........................................64
SECTION 8.2. Legal Defeasance and Discharge.....................................................................64
SECTION 8.3. Covenant Defeasance................................................................................64
SECTION 8.4. Conditions to Legal Defeasance or Covenant Defeasance..............................................65
SECTION 8.5. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.............................................................66
SECTION 8.6. Repayment to Company...............................................................................67
SECTION 8.7. Reinstatement......................................................................................67
SECTION 8.8. Discharge of Liability on Securities; Defeasance...................................................67
ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders.........................................................................68
SECTION 9.2. With Consent of Holders............................................................................69
SECTION 9.3. Compliance with Trust Indenture Act................................................................70
SECTION 9.4. Revocation and Effect of Consents..................................................................70
SECTION 9.5. Notation on or Exchange of Notes...................................................................71
SECTION 9.6. Trustee to Sign Amendments, etc....................................................................71
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ARTICLE 10
GUARANTEES
SECTION 10.1. Unconditional Guarantee...........................................................................71
SECTION 10.2. Severability......................................................................................72
SECTION 10.3. Release of a Guarantor............................................................................72
SECTION 10.4. Limitation of Guarantor's Liability...............................................................73
SECTION 10.5. Guarantors May Consolidate, etc., on Certain Terms................................................73
SECTION 10.6. Contribution......................................................................................73
SECTION 10.7. Waiver of Subrogation.............................................................................74
SECTION 10.8. Execution of Guarantee............................................................................74
SECTION 10.9. Waiver of Stay, Extension or Usury Laws...........................................................75
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls......................................................................75
SECTION 11.2. Notices...........................................................................................75
SECTION 11.3. Communication by Holders with Other Holders.......................................................76
SECTION 11.4. Certificate and Opinion as to Conditions Precedent................................................76
SECTION 11.5. Statements Required in Certificate or Opinion.....................................................77
SECTION 11.6. Rules by Trustee and Agents.......................................................................77
SECTION 11.7. Legal Holidays....................................................................................77
SECTION 11.8. No Recourse Against Others........................................................................78
SECTION 11.9. Governing Law.....................................................................................78
SECTION 11.10. No Adverse Interpretation of Other Agreements....................................................78
SECTION 11.11. Successors.......................................................................................78
SECTION 11.12. Severability.....................................................................................78
SECTION 11.13. Counterpart Originals............................................................................78
SECTION 11.14. Table of Contents, Headings, etc.................................................................79
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Exhibits
Exhibit A FORM OF NOTE AND GUARANTEE A-1
Exhibit B FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF NOTES B-1
Exhibit C FORM OF CERTIFICATE TO BE DELIVERED BY ACCREDITED
INSTITUTIONS C-1
Exhibit D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S D-1
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INDENTURE, dated as of July 30, 1998, by and among TELEHUB
COMMUNICATIONS CORPORATION, a Nevada corporation (the "Company"), TELEHUB
NETWORK SERVICES CORPORATION, an Illinois corporation ("TNS"), TELEHUB
TECHNOLOGIES CORPORATION, a Nevada corporation ("TTC"), TELEHUB LEASING
CORPORATION, a Nevada corporation ("TLC" and collectively with TNS and TTC, the
"Guarantors"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, as trustee ("Trustee").
Each party hereto agrees as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the Company's 13 7/8%
Series A Senior Discount Notes due 2005 of the Company (the "Series A Notes"),
and the 13 7/8% Series B Senior Discount Notes due 2005 of the Company (the
"Series B Notes" and together with the Series A Notes, the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
"Accreted Value" means as of any date of determination prior to
July 31, 2001, an amount per $1,000 principal amount at maturity of any Note
that is equal to the sum of (a) the initial offering price of such Note ($668.43
per $1,000 principal amount at maturity) and (b) the portion of the excess of
the principal amount at maturity of such Note over such initial offering price
which shall have been accreted thereon through such date, such amount to be so
accreted on a daily basis at the rate of 13 7/8% per annum on the initial
offering price of such Note, compounded semi-annually on each January 31 and
July 31 from the Issue Date through the date of determination, computed on the
basis of a 360-day year of twelve 30-day months.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Subsidiary of such specified Person, including,
without limitation, 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 (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
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"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback), other than sales of inventory in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by the provisions of Section
4.15 and/or Article 5 hereof, and not by the provisions Section 4.14 hereof),
and (ii) the issue or sale by the Company or any of its Subsidiaries of Equity
Interests of any of the Company's Subsidiaries, whether in a single transaction
or a series of related transactions (a) that have a fair market value in excess
of $1.0 million or (b) for net proceeds in excess of $1.0 million.
Notwithstanding the foregoing: (i) a transfer of assets by the Company to a
Wholly Owned Subsidiary or by a Wholly Owned Subsidiary to the Company or to
another Wholly Owned Subsidiary, (ii) a Restricted Payment that is permitted by
Section 4.9 hereof and (iii) a TNS/TTC Transaction will not be deemed to be an
Asset Sale.
"Bank Credit Facility" means (i) one or more revolving credit
facilities entered into by the Company and/or its Subsidiaries, (ii) each
instrument pursuant to which the Obligations under the agreement described in
clause (i) above are amended, deferred, extended, renewed, replaced, refunded or
refinanced, in whole or in part, and (iii) each instrument now or hereafter
evidencing, governing, guaranteeing or securing any Indebtedness under any
agreements described in clause (i) or (ii) above, in each case, as modified,
amended, restated or supplemented from time to time.
"Board of Directors" means, as applicable, the Board of Directors
of the Company or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (iii) certificates of
deposit and Eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500 million, and whose short-term
debt has a rating at the time of any such investment of at least "A-1" or the
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equivalent thereof by Standard & Poor's or at least "P-1" or the equivalent
thereof by Moody's, (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Moody's or Standard & Poor's and in each case
maturing within one year after the date of acquisition and (vi) securities that
are registered under the Securities Act and are sold within forty-five (45)days
of any acquisition of the Company or any of its Subsidiaries for cash (to the
extent of the cash received by the Company or such Subsidiary net of all
transaction costs and taxes).
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to any "person" or "group" (as such terms are used in Section
13(d)(3) and Section 14(d)(2) of the Exchange Act) other than the Principals,
(ii) the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person
or group (as defined above), other than the Principals, becomes the "beneficial
owner" (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act),
directly or indirectly, of more of the voting power of the voting stock of the
Company than at that time is beneficially owned by the Principals, (iv) after
the consummation of any Public Offering, any person or group (as defined above),
other than the Principals, becomes the "beneficial owner" of 35% or more of the
voting power of the voting stock of the Company; or (v) the first day on which
more than a majority of the members of the board of directors of the Company are
not Continuing Directors. For purposes of this definition, any transfer of an
equity interest of an entity that was formed for the purpose of acquiring voting
stock of the Company will be deemed to be a transfer of such portion of such
voting stock as corresponds to the portion of the equity of such entity that has
been so transferred. "Change of Control" shall not mean a TNS/TTC Transaction.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person and its Subsidiaries for
such period plus, without duplication, to the extent deducted in computing
Consolidated Net Income, (i) an amount equal to any extraordinary loss plus any
net loss realized in connection with an Asset Sale, (ii) provision for taxes
based on income or profits of such Person and its Subsidiaries for such period,
(iii) consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued (including, without limitation and without
duplication, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (iv) depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) of such Person and its
Subsidiaries for such period, in each case, on a consolidated basis and
determined in accordance with GAAP. Notwithstanding the
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foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization of, a Subsidiary of the referent Person shall be
added to Consolidated Net Income to compute Consolidated Cash Flow only to the
extent (and in same proportion) that the Net Income of such Subsidiary was
included in calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended, directly or indirectly, to the Company by such 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 such Subsidiary or its stockholders.
"Consolidated Debt" means, with respect to any Person as of any
date of determination, the sum, without duplication of (i) the total amount of
Debt of such Person and its Subsidiaries, plus (ii) the total amount of Debt of
any other Person, to the extent that such Debt has been guaranteed by the
referent Person or one or more of its Subsidiaries, plus (iii) the aggregate
liquidation value of all preferred stock of Subsidiaries of such Person, in each
case, determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of
determination, the ratio of (a) the Consolidated Debt of the Company as of such
date to (b) two times the Consolidated Cash Flow of the Company for the two most
recent full fiscal quarters ending immediately prior to such date for which
internal financial statements are available but in no event ending more than 135
days prior to the date of such determination (the "Measurement Period"),
determined on a pro forma basis after giving effect to all acquisitions or
dispositions of assets made by the Company and its Subsidiaries from the
beginning of such two-quarter period through and including such date of
determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such two-quarter
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the two-quarter Measurement Period or subsequent to such
Measurement Period and on or prior to the date of calculation (the "Calculation
Date") shall be deemed to have occurred on the first day of the two-quarter
Measurement Period and Consolidated Cash Flow for such Measurement Period shall
be calculated without giving effect to clause (iii) of the proviso set forth in
the definition of Consolidated Net Income, (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, (iii) if the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio is an incurrence of Indebtedness, the amount of
Indebtedness outstanding at the end of the Measurement Period shall be
calculated after giving effect on a pro forma basis to the incurrence of such
Indebtedness as if such Indebtedness had been outstanding as of the end of the
Measurement Period and to the discharge of any other Indebtedness to the extent
it was outstanding as of the end of the Measurement Period and is to be repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such Indebtedness has been discharged as of the end of the
Measurement Period, and (iv) if the Company or any Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness that was
outstanding as of the end of the Measurement Period or if any Indebtedness that
was outstanding as of the end of the Measurement Period is to be repaid,
repurchased, defeased or otherwise discharged on the date of
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the transaction giving rise to the need to calculated the Consolidated Leverage
Ratio, the aggregate amount of Indebtedness outstanding as of the end of the
Measurement Period shall be calculated on a pro forma basis as if such discharge
had occurred as of the end of the Measurement Period and the Consolidated Cash
Flow shall be calculated as if the Company or such Subsidiary had not earned the
interest income, if any, actually earned during the period of the most recent
two consecutive fiscal quarters for which financial statements have been made
publicly available but in no event ending more than 135 days prior to the date
of such determination in respect of cash or Cash Equivalents (excluding clause
(vi) thereof) used to repay, repurchase, defease or otherwise discharge such
Indebtedness.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) 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 referent Person or a Wholly
Owned Subsidiary thereof, (ii) the Net Income of any Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of such 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 Subsidiary or its stockholders, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded, and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common equity holders of
such Person and without duplication its Subsidiaries as of such date plus (ii)
the respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than Disqualified Stock)
that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (a) all
write-ups (other than write-ups resulting from foreign currency transactions and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the date of this Indenture
in the book value of any asset owned by such Person or a consolidated Subsidiary
of such Person, (b) all Investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Subsidiaries (except, in each case,
Permitted Investments), and (c) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing determined in
accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the board of directors of the Company who (i) was a member of the
board of directors on the date of this Indenture or (ii) was nominated for
election to the board of directors with the approval of at least a majority of
the Continuing Directors who were members of the board of directors at the time
of such nomination or election.
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"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.2 hereof or such other address as to
which the Trustee may give notice to the Company.
"Debt" 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 the balance deferred and unpaid of the purchase price of any
property or representing Hedging Obligations.
"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 Notes" means Notes that are in the form of Exhibit A
attached hereto (but without including the text referred to in footnote 1
thereto and the additional schedule referred to therein).
"Depository" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depository 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, "Depository" shall mean 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), 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.
"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).
"Event of Default" has the meaning set forth in Section 6.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Note" means any Series B Note issued in exchange for an
Original Note pursuant to the Exchange Offer or the Private Exchange Offer.
"Exchange Offer" means the offer by the Company to the Holders of
all outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Notes, in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act relating to the Exchange Offer, including the
related prospectus.
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"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries in existence on the date of this Indenture, until such amounts are
repaid.
"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 of this Indenture.
"Global Note" means a Note that contains the paragraph referred
to in footnote 1 and the additional schedule referred to in the form of Note
attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Guarantee" means the guarantee of each Guarantor set forth in
Article 10 and any additional guarantee of the Notes executed by any Subsidiary
of the Company.
"Guarantors" means any Subsidiary that executes a Guarantee in
accordance with the provisions of this Indenture, and their respective
successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest and currency rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest or currency exchange rates (except that if any agreement relating to
such obligation provides for the netting of amounts payable by and to such
Person thereunder or if any such agreement provides for the simultaneous payment
of amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount thereof).
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, (i) 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, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (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, (ii) all
indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) in which case the amount of
such Indebtedness shall be deemed to be the lesser of (a) the amount of such
Indebtedness and (b) the fair market value of the asset that secures such
Indebtedness, (iii) Disqualified Stock of such Person, (iv) preferred stock of
any Subsidiary of such Person (other than Preferred Stock held by such Person or
any of its Subsidiaries) and (v) to the
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extent not otherwise included, the guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
directly or indirectly, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness 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 that does not require current
payments of interest, and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchaser" means BancBoston Securities Inc., as initial
purchaser in the Offering.
"Interest Payment Date" means, with respect to any installment of
interest on the Notes, the date specified in such Note as the fixed date on
which such installment of interest is due and payable.
"Interest Record Date" shall have the meaning set forth in the
form of the Note attached hereto as Exhibit A.
"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 officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company or any of its Subsidiaries for consideration consisting of common
equity securities of the Company shall not be deemed to be an Investment. If the
Company or any Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the Company such that,
after giving effect to any sale or disposition, such Person is no longer a
Subsidiary of the Company, 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 Section 4.9 hereof.
"Issue Date" means the date of first issuance of the Notes under
this Indenture.
"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).
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"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Make-Whole Premium" means, with respect to a Note, an amount
equal to the excess of (a) the present value of the remaining interest,
Liquidated Damages, if any, and principal payments due on such Note as if such
Note was redeemed on July 31, 2002, computed using a discount rate equal to the
Treasury Rate plus 100 basis points, over (b) the outstanding Accreted Value of
such Note as of the date of determination. "Treasury Rate" is defined as the
yield to maturity at the time of the computation of United States Treasury
securities with a constant maturity (as compiled by and published in the most
recent Federal Reserve Statistical Release H.15(519)), which has become publicly
available at least two Business Days prior to the date fixed for prepayment (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data) most nearly equal to the then remaining average
life of the Notes for which a Make-Whole Premium is being calculated; provided,
however, that if the average life of such Notes is not equal to the constant
maturity of the applicable United States Treasury securities for which a weekly
average yield is given, except that if the average life of such Notes is less
than one year, the weekly average yield on actually traded United State Treasury
securities adjusted to a constant maturity of one year shall be used.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person for such period, determined in accordance
with GAAP and before any reduction in respect of preferred stock dividends,
excluding, however, (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with (a)
any Asset Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions) or (b) the disposition of any securities by such Person
or any of its Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Subsidiaries and (ii) any extraordinary or nonrecurring
gain (but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), any relocation expenses
incurred as a result thereof, any taxes paid or payable by the Company or any of
its Subsidiaries as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), amounts required to
be applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Notes" means the Exchange Notes and the Original Notes.
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"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Series A Notes pursuant to
the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the
Company, dated July 27, 1998, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer or President and the Chief
Financial Officer or chief accounting officer of such Person.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof and, to the extent required by the TIA, complies with TIA Section
314. The counsel may be an employee of or counsel to the Company, any of its
Subsidiaries or the Trustee.
"Original Notes" means the Series A Notes initially issued under
this Indenture prior to the issuance of Exchange Notes.
"Permitted Investments" means (i) any Investment in the Company
or in a Wholly Owned Subsidiary of the Company; (ii) any Investment in Cash
Equivalents; (iii) any Investment by the Company or any of its Subsidiaries in a
Person if, as a result of such Investment, (a) such Person becomes a Wholly
Owned Subsidiary of the Company 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 Wholly Owned Subsidiary of
the Company; (iv) any Investment existing on the date of this Indenture; (v) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.14 hereof,
and (vi) other Investments in any Person (other than an Affiliate that is not a
Subsidiary or a Person that is controlled by an Affiliate that is not a
Subsidiary) engaged in a line of business that is similar, complementary or
ancillary to the business of the Company on the Issue Date, when taken together
with all other Investments made pursuant to this clause (vi) that are at the
time outstanding, not to exceed $3.0 million.
"Permitted Liens" means (i) Liens securing the Bank Credit
Facility; (ii) Liens in favor of the Company or any of its Subsidiaries; (iii)
Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any of its Subsidiaries, provided that such
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Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or any such Subsidiary; (iv) Liens
on property existing at the time of acquisition thereof by the Company or any of
its Subsidiaries, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens to secure Indebtedness permitted by Section 4.8(iv)(A) hereof covering
only the assets acquired with such Indebtedness; (vii) Liens existing on the
date of this Indenture excluding Liens on Indebtedness to be repaid with the
proceeds of the Offering; (viii) 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; (ix) Liens
incurred in the ordinary course of business of the Company or any of its
Subsidiaries with respect to obligations that do not exceed $2.0 million at any
one time outstanding and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or any such Subsidiary; (x)
renewals or refundings of any Liens referred to in clauses (iii) through (ix)
above, provided that any such renewal or refunding does not extend to any assets
or secure any Indebtedness not securing or secured by the Liens being renewed or
refinanced; (xi) any Lien consisting of a deposit or pledge made in the ordinary
course of business in connection with, or to secure payment of, obligations
under worker's compensation, unemployment insurance or similar legislation; and
(xii) any Lien constituting a renewal, extension or replacement of a Lien
constituting a Permitted Lien, but only if (1) at the time such Lien is granted
and immediately after giving effect thereto, no Default would exist, (2) such
Lien is limited to all or a part of the property or asset that was subject to
the Lien so renewed, extended or replaced and to fixed improvements thereafter
erected on such property or asset, (3) the principal amount of the obligations
secured by such Lien does not exceed the principal amount of the obligation
secured by the Lien so renewed, extended or replaced, (4) the obligations
secured by such Lien bear interest at a rate per annum not exceeding the rate
borne by the obligations secured by the Lien so renewed, extended or replaced
except for any increase that is commercially reasonable at the time of such
increase and (5) the principal amount of the obligations has a 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 obligation secured by the Lien so
renewed, extended or replaced.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its 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 such Subsidiary; provided that: (i) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Debt does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Debt has a final maturity
date no earlier than the final maturity date of, and has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
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replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Debt has a final maturity date no earlier than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred only by
the Company or the Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Private Exchange Offer" means a private exchange offer pursuant
to Section 2(a) of the Registration Rights Agreement.
"Principals" mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, their
lineal descendants and any trust, corporation, partnership, association, limited
liability company or other entity in which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and/or their lineal descendants hold at least 80% of the total, combined
outstanding voting power or similar controlling interest.
"Public Offering" means an underwritten primary public offering
of common stock (other than Disqualified Stock) of the Company registered under
the Securities Act (other than a public offering registered on Form S-8 under
the Securities Act).
"Registration Rights Agreement" means that certain Registration
Rights Agreement, dated as of the date of this Indenture, among the Company, the
Guarantors and the Initial Purchaser, as amended or supplemented from time to
time.
"Representative" means the Trustee and any other trustee, agent
or representative of holders of any Senior Debt.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
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"Series A Notes" means the Company's 13 7/8% Series A Senior
Discount Notes due 2005 to be issued pursuant to this Indenture.
"Series B Notes" means the Company's 13 7/8% Series B Senior
Discount Notes due 2005 to be issued pursuant to this Indenture in the Exchange
Offer.
"Senior Debt" of any Person means (i) any Indebtedness of such
Person incurred under the Bank Credit Facility and all Hedging Obligations with
respect thereto, (ii) any other Indebtedness permitted to be incurred by such
Person under the terms of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is subordinated in right of
payment to any Senior Debt of such Person, and (iii) all Obligations of such
Person with respect to the foregoing. Notwithstanding anything to the contrary
in the foregoing, Senior Debt will not include (a) any liability for federal,
state, local or other taxes owed or owing by such Person, (b) any Indebtedness
of such Person to any of its Subsidiaries or other Affiliates, (c) any trade
payables or (d) any Indebtedness that is incurred in violation of this
Indenture.
"Standard & Poor's" means Standard and Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person and/or one or
more Subsidiaries of such Person (or any combination thereof).
"Telecommunications Business" means, when used in reference to
any Person, that such Person is engaged primarily in the business of (i)
transmitting, or providing services relating to the transmission of voice, video
or data through owned or leased transmission facilities, (ii) creating,
developing or marketing communications related network equipment, software and
other devices for use in a Telecommunications Business, or (iii) evaluating,
participating or pursuing any other activity or opportunity that is related to
those identified in (i) or (ii) above; provided that the determination of what
constitutes a Telecommunications Business shall be made in good faith by the
Board of the Company.
"TIA" means the Trust Indenture Act of 1939, as in effect on the
date this Indenture is qualified under the TIA.
"TNS" means TeleHub Network Services Corporation, an Illinois
corporation, substantially all of the assets of which include an ATM Network.
"TNS/TTC Transaction" means (i) a sale, assignment, transfer,
lease conveyance or other disposition of all of the capital stock of TNS or all
or substantially all of the assets comprising TNS's
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ATM Network, and/or (ii) a sale, assignment, transfer, lease, conveyance or
other disposition of all of the capital stock of TTC or all or substantially all
of the assets comprising TTC's business; provided that no asset of the Company
or any of its Subsidiaries shall have been or will be transferred or licensed to
the Subsidiary or business be divested by the Company other than on an arm's
length basis and in the ordinary course of business.
"Transfer Restricted Securities" has the meaning ascribed to the
term "Registrable Securities" in the Registration Rights Agreement.
"Trustee" means the party named as such above until a successor
replaces it in accordance with applicable provisions of this Indenture, and
thereafter means the successor serving hereunder.
"TTC" means TeleHub Technologies Corporation, a Nevada
corporation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned 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 and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.2. Other Definitions
Defined in
Term Section
------ -----------
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.14
"Bankruptcy Law" 6.1
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.3
"Custodian" 6.1
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.14
"Funding Guarantor" 10.6
"incur" 4.8
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"Legal Defeasance" 8.2
"Legal Holiday" 11.7
"Offer Amount" 3.9
"Offer Period" 3.9
"Paying Agent" 2.3
"Payment Default" 6.1
"Purchase Date" 3.9
"Registrar" 2.3
"Restricted Payments" 4.9
"Restricted Period" 2.6
"TNS/TTC Put Option Payment" 4.15
"TNS/TTC Put Option Offer" 4.15
"TNS/TTC Put Option Payment 4.15
Date"
SECTION 1.3. Incorporation by Reference of Trust Indenture Act
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 Notes;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, any Guarantor, or any
successor obligor upon the Notes or the Guarantee.
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 1.4. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(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; and
(6) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating
The Original Notes, the notation thereon relating to the
Guarantee and the Trustee's certificate of authentication relating thereto shall
be substantially in the form of Exhibit A hereto, with such appropriate
insertions, substitutions and other variations as are required or permitted by
this Indenture. The Exchange Notes, the notation thereon relating to the
Guarantee and the Trustee's certificate of authentication relating thereto shall
be substantially in the form of Exhibit A hereto, with such appropriate
insertions, substitutions and other variations as are required or permitted by
this Indenture; provided, that Exchange Notes issued in the Exchange Offer shall
not bear the legend set forth in Exhibit A hereto as indicated by footnote 2;
provided, further, that Exchange Notes issued in both the Exchange Offer and the
Private Exchange Offer shall not refer to Liquidated Damages and shall not
include paragraph 19 of Exhibit A hereto. The Notes may have notations, legends
or endorsements required by this Indenture, law, stock exchange rule, depository
rule or usage. Any such notation, legend or endorsement shall be delivered in
writing to the Trustee by the Company. Each Note shall be dated the date of its
issuance and show the date of its authentication.
The terms and provisions contained in the Notes and the
Guarantee, annexed hereto as Exhibit A hereto, shall constitute, and are hereby
expressly made, a part of this Indenture, and the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
The Original Notes initially will be issued in global form,
substantially in the form of Exhibit A attached hereto (including the text set
forth in footnote 1 thereto and the additional schedule referred to therein) and
may be issued in definitive form, substantially in the form of Exhibit A hereto
(not including the text set forth in footnote 1 thereto and the additional
schedule referred to therein). The Original Notes initially will be deposited
with the Trustee, as Note Custodian. The Global Notes initially shall be
registered in the name of the Depository or the nominee of the Depository. A
Global Note shall represent such of the outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate amount of
outstanding Notes from time to time
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endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee, as Note Custodian, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
SECTION 2.2. Execution and Authentication
One Officer of the Company shall sign the Notes for the Company
by manual or facsimile signature. Each Guarantor shall execute the Guarantee in
the manner set forth in Section 10.8.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth in Exhibit A hereto, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate of authentication
executed by the Trustee upon any Note executed by the Company shall be
conclusive evidence that the Note so authenticated has been duly authenticated
and delivered hereunder.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a request for the
authentication and delivery of such Notes signed by an Officer of the Company,
and the Trustee, in accordance with such request, shall authenticate and deliver
such Notes as provided in this Indenture.
The Trustee shall authenticate (i) Original Notes for original
issue in the aggregate principal amount at maturity not to exceed $125,000,000,
and (ii) Exchange Notes issued, either (x) in the Exchange Offer for the
Original Notes pursuant to the Exchange Offer Registration Statement filed with
the Commission from time to time, for issue only in exchange for a like
principal amount at maturity of Original Notes or (y) in the Private Exchange
Offer, for issue only in exchange for a like principal amount at maturity of
Original Notes, in each case, upon written order of the Company in the form of
an Officers' Certificate. The Officers' Certificate shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated, whether the Notes are to be Original Notes or Exchange Notes and
whether the Notes are to be Definitive Notes or Global Notes. Except as
contemplated by Section 2.7 hereof, the aggregate principal amount at maturity
of Notes outstanding at any time may not exceed $125,000,000. Notwithstanding
the foregoing, all Notes issued under this Indenture shall vote and consent
together on all matters as one class and no series of Notes will have the right
to vote or consent as a separate class on any matter.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 stated principal amount at maturity
and any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may
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authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same right as an Agent to deal with the
Company or an Affiliate of the Company. The Trustee shall not be liable for any
act or failure to act of the authenticating agent to perform any duty either
required herein or authorized herein to be performed by such person in
accordance with this Indenture. Each authenticating agent shall be acceptable to
the Company and otherwise comply in all respects with the eligibility
requirements of the Trustee contained in this Indenture.
SECTION 2.3. Registrar and Paying Agent
The Company shall maintain an office or agency where (a) Notes
may be presented for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Notes may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agents. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with Section 7.7 hereof. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar, except that for
purposes of payments on the Notes pursuant to Sections 4.14 and 4.15 hereof,
neither the Company nor any of its Affiliates may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company initially appoints The Depository Trust
Company ("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and agent for service of notices and demands in
connection with the Notes.
SECTION 2.4. Paying Agent to Hold Assets in Trust
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on, or Liquidated Damages
with respect to, the Notes (whether such assets have been distributed to it by
the Company or any other obligor on the Notes), and will notify the Trustee of
any Default by the Company or any other obligor on the Notes in making any such
payment. While any such Default continues, the Trustee may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed. The Company at any time may require a Paying Agent to pay all
assets held by it to the Trustee and account for any assets disbursed. Upon
payment over and accounting to the Trustee, the Paying Agent (if other than the
Company or any of its Subsidiaries) shall have no other liability
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for the assets. If either the Company or any of its Subsidiaries acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 2.5. Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee as of each Interest
Record 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, including the aggregate principal amount of
Notes held by each Holder.
SECTION 2.6. Transfer and Exchange
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar with the request to register the transfer
of the Definitive Notes, or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that the
Definitive Notes presented or surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Holder thereof or by an attorney who is
duly authorized in writing to act on behalf of the Holder; and
(ii) shall, in the case of a Transfer Restricted Security,
be accompanied by the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification from
such Holder to that effect (in substantially the form of Exhibit
B hereto); or
(B) if such Transfer Restricted Securities are
being transferred (1) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of Rule 144A under the Securities Act or
(2) pursuant to an exemption from registration in a transaction
meeting the requirements of Rule 144 under the Securities Act
(based upon an Opinion of Counsel if the Company so requests) or
(3) pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such Holder
(in substantially the form of Exhibit B hereto); or
(C) if such Transfer Restricted Securities are
being transferred to an institutional "accredited investor,"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the
registration
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requirements of the Securities Act (based upon an Opinion of
Counsel if the Company so requests), a certification to that
effect from such Holder (in substantially the form of Exhibit B
hereto) and a certification from the applicable transferee (in
substantially the form of Exhibit C hereto);
(D) if such Transfer Restricted Securities are
being transferred outside the U.S. to a foreign person pursuant
to an exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based on
an Opinion of Counsel if the Company so requests), certification
to that effect from such Holder (in substantially the form of
Exhibits B and D hereto); or
(E) if such Transfer Restricted Securities are
being transferred in reliance on another exemption from the
registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), a certification
to that effect from such Holder (in substantially the form of
Exhibit B hereto).
(b) Transfer of a Definitive Note for a Beneficial Interest in a
Global Note. A Definitive Note may not be exchanged for a beneficial interest in
a Global Note except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the Holder thereof or by an attorney who is duly authorized in writing to act
on behalf of the Holder, together with:
(i) if such Definitive Note is being delivered to the
Trustee by a Holder, without transfer, to enable such Holder to obtain a
beneficial interest in a Global Note, a certification from such Holder
to that effect (in substantially the form of Exhibit B hereto); provided
that such Holder provides a certification that such Holder is otherwise
permitted to hold a beneficial interest in a Global Note;
(ii) if such Definitive Note is a Transfer Restricted
Security and is being transferred, certification, substantially in the
form of Exhibit B hereto, that either (A) such Definitive Note is being
transferred to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A under the Securities Act, (B) to an institutional
"accredited investor," within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act pursuant to a private placement exemption
from the registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), provided that the
Trustee receives a certification from such transferee (in substantially
the form of Exhibit C hereto), or (C) to a foreign person outside the
U.S. pursuant to an exemption from registration in a transaction meeting
the requirements of Regulation S under the Securities Act (based upon an
Opinion of Counsel if the Company so requests), provided that the
Trustee receives a certification from such transferor (in substantially
the form of Exhibit D hereto); and
(iii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to make,
or directing the Note Custodian to make, an
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endorsement on the Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note;
then the Trustee shall cancel such Definitive Note in accordance with Section
2.11 hereof and cause, or direct the Note Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depository and the
Note Custodian, the aggregate principal amount of Notes represented by the
Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depository from the
Depository or its nominee on behalf of any Person having a beneficial
interest in a Global Note, and, in the case of a Transfer Restricted
Security, the following additional information and documents (all of
which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depository as being
the beneficial owner, a certification from such Person to that
effect (in substantially the form of Exhibit B hereto); or
(B) if such beneficial interest is being
transferred (1) to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in a transaction meeting
the requirements of Rule 144A under the Securities Act or (2)
pursuant to an exemption from registration in a transaction
meeting the requirements of Rule 144 under the Securities Act
(based upon an Opinion of Counsel if the Company so requests) or
(3) pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B hereto); or
(C) if such beneficial interest is being
transferred to an institutional "accredited investor," within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), a certification
to that effect from such transferor (in substantially the form of
Exhibit B hereto) and a certification from the applicable
transferee (in substantially the form of Exhibit C hereto); or
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(D) if such beneficial interest is being
transferred outside the U.S. to a foreign person pursuant to an
exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based upon
an Opinion of Counsel if the Company so requests), certifications
to that effect from such transferor (in substantially the form of
Exhibits B and D hereto); or
(E) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), a certification
to that effect from such transferor (in substantially the form of
Exhibit B hereto);
then the Trustee or the Note Custodian, at the direction of the Trustee,
shall, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, cause the
aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and, upon
receipt of an authentication order in accordance with Section 2.2
hereof, the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes
are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global 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.
(f) Until the later of (A) the 41st day after the Issue Date and
(B) the 41st day after the day on which the Notes are first offered to persons
other than distributors (as defined in Regulation S of the Securities Act) in
reliance on Regulation S of the Securities Act (the "Restricted Period"), an
owner of a beneficial interest in the Regulation S Global Note may not transfer
such interest to a transferee that is a U.S. person (other than a distributor)
or for the account or benefit of a U.S. person within the meaning of Rule 902
(o) of the Securities Act unless such transfer is made pursuant to the
registration of the Notes under the Securities Act or on an available exemption
from registration requirements under the Securities Act. Upon such an exchange
to a person, certification is required of the beneficial ownership of the Global
Notes by a non-U.S. person or a U.S. person who purchased the Global Notes in a
transaction that did not require registration under the Securities Act. During
the Restricted Period, all beneficial interests in the Regulation S Global Note
shall be transferred only through Cedel or Euroclear, either directly if the
transferor and transferee are participants in such systems, or indirectly
through organizations that are participants. During the
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Restricted Period, the Regulation S Global Note will be represented by a
temporary Regulation S Global Note.
(g) Authentication of Definitive Notes. If at any time:
(i) the Company notifies the Trustee in writing that the
Depository for the Notes is no longer willing or able to act as
Depository for the Global Notes and a successor Depository for the
Global Notes is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under
this Indenture;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes, will
authenticate and deliver Definitive Notes, in an aggregate principal amount
equal to the principal amount of the Global Notes, in exchange for such Global
Notes and registered in such names as the Depository shall instruct the Trustee
or the Company in writing.
(h) Legends.
(i) Except as permitted by the following paragraphs (iii)
and (iv), each Note certificate evidencing the Global Notes and the
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form until after the second anniversary of the later of the date of
original issuance of the Note and the last day on which the Company or
any Affiliate of the Company was the owner of such Note (or any
predecessor security):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
PERSON EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) WHO IS AN INSTITUTION (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE DATE OF ORIGINAL
ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (THE
"RESALE RESTRICTION TERMINATION DATE") OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE, EXCEPT (A) TO THE ISSUER, (B) TO A PERSON
WHOM THE SELLER
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REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH THE RESALE PROVISIONS OF
RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE A WRITTEN CERTIFICATION CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE, THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN THE
INDENTURE MAY NOT TRANSFER THIS NOTE PURSUANT TO THIS CLAUSE (C)
PRIOR TO THE EXPIRATION OF THE "40-DAY RESTRICTED PERIOD" (WITHIN
THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE
SECURITIES ACT), (D) PURSUANT TO THE RESALE LIMITATIONS PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(F) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT OR (G)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (BASED, IN THE CASE OF CLAUSES
(C), (D), (F) AND (G) ABOVE, UPON AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER IF THE ISSUER SO REQUESTS),
SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW
THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH
ACCOUNT BE AT ALL TIMES WITHIN ITS CONTROL AND TO COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE FOREGOING RESTRICTIONS ON RESALE WILL NOT
APPLY SUBSEQUENT TO THE RESALE RESTRICTION TERMINATION DATE.
(ii) Each Global Note shall also bear the following
legend:
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
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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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth in clause
(i) above and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in clause (i)
above if all other interests in such Global Note have been or are
concurrently being sold or transferred pursuant to Rule 144 under
the Securities Act or pursuant to an effective registration
statement under the Securities Act, but such Transfer Restricted
Security shall continue to be subject to the provisions of
Section 2.6(c) hereof; provided, however, that with respect to
any request for an exchange of a Transfer Restricted Security
that is represented by a Global Note for a Definitive Note that
does not bear a legend set forth in clause (i) above, which
request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certification to be
substantially in the form of Exhibit B hereto).
(iv) Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof, the Trustee
shall authenticate Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer, which Series B Notes shall
not bear the legend set forth in clause (i) above, and the Registrar
shall rescind any restriction on the transfer of such Notes, in each
case unless the Holder of such Series A Notes is either (A) a
broker-dealer, (B) a Person participating in the distribution (within
the meaning of the Securities Act) of the Series A Notes or (C) a Person
who is an affiliate (as defined in Rule
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144A) of the Company. The Company shall identify to the Trustee such
Holders of the Notes in a written certification signed by an Officer
of the Company and, absent certification from the Company to such
effect, the Trustee shall assume that there are no such Holders.
(v) By its acceptance of any Note bearing the legend set
forth in Section 2.6(g)(i) hereof, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in such legend and agrees that it will transfer such Note
only as provided in this Indenture.
(vi) Each temporary Regulation S Global Note in effect
during the Restricted Period shall also bear the following legend:
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S
GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE
144A GLOBAL NOTE OR THE PERMANENT REGULATION S GLOBAL NOTE OR ANY
OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED
HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON
TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY RESTRICTED PERIOD"
(WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE
SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL
INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS
WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
RESTRICTED PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR
TRANSFERRED THROUGH THE EUROCLEAR SYSTEM OR CEDEL S.A. AND ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.
DURING SUCH 40-DAY RESTRICTED PERIOD, INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY NOT BE TRANSFERRED TO INSTITUTIONS
THAT ARE "ACCREDITED INVESTORS" AS DEFINED IN RULE 501(a)(1),
(2), (3), OR (7) UNDER THE SECURITIES ACT BUT NOT QUALIFIED
INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE WILL NOTIFY ANY PURCHASER OF SUCH RESALE RESTRICTIONS, IF
THEN APPLICABLE.
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(i) Cancellation and/or Adjustment of Global Note. At such time
as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be reduced and an endorsement shall
be made on such Global Note, by the Trustee or the Note Custodian, at the
direction of the Trustee to reflect such reduction.
(j) General Provisions with respect to Transfer and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate, pursuant
to the terms of this Indenture, Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charges payable upon exchange or
transfer pursuant to Sections 2.10, 3.7, 3.9, 4.14, 4.15 and 9.5
hereof).
(iii) Neither the Company nor the Registrar shall be
required to register the transfer or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefit under this Indenture as the Definitive
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required to issue, register
the transfer or exchange of Notes during a period beginning at the
opening of 15 days before the day of any selection of Notes for
redemption under Section 3.2 and ending at the close of business on the
day of selection.
(vi) Prior to due presentment for registration of transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of, and
premium, interest and Liquidated Damages, if any, on such Note, and
neither the Trustee, any Agent nor the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and
Global Notes in accordance with the provisions of Section 2.2 hereof.
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(viii) Neither the Company nor the Trustee shall be liable
for any delay by the Depository in identifying the beneficial owners of
the Notes and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from the Depository for all
purposes (including with respect to the registration and delivery, and
the respective principal amounts, of any Notes to be issued).
(ix) Members of, or participants in, the Depository shall
have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as the Note Custodian,
or under the Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (x) prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or (y) impair, as between the Depository and
members of, or participants in, the Depository, the operation of
customary practices governing the exercise of the rights of a Holder of
any Note.
SECTION 2.7. Replacement Notes
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by an Officer of the Company, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss which any of them may suffer if a Note is replaced. The Company and the
Trustee may charge for their expenses in replacing a Note. If after the delivery
of such new Note, a bona fide purchaser of the original Note in lieu of which
such new Note was issued presents for payment such original Note, the Company
and the Trustee shall be entitled to recover such new Note from the person to
whom it was delivered or any transferee thereof, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder, and those described in this Section 2.8 as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because either of the Company or an Affiliate of the Company holds a
Note.
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If a Note is replaced pursuant to Section 2.7 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date, money sufficient to pay all
principal, interest, premium and Liquidated Damages, if any, payable on that
date with respect to the Notes (or the portion thereof to be redeemed or
maturing, as the case may be), then on and after that date such Notes (or
portions thereof) shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.9. Treasury Notes
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or any Affiliate of the Company shall be considered
as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver, consent
or notice, only Notes which a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded. The Company shall notify the Trustee, in
writing, when the Company or any of its Affiliates repurchases or otherwise
acquires Notes and the aggregate principal amount of such Notes so repurchased
or otherwise acquired.
SECTION 2.10. Temporary Notes
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of the written order of the Company signed
by an Officer of the Company, shall authenticate and deliver temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may
have variations that the Company and the Trustee consider appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the written order of the Company signed by an Officer
of the Company, shall authenticate and deliver, Definitive Notes in exchange for
temporary Notes.
Until such exchange, Holders of temporary Notes shall be entitled
to all of the rights, benefits and privileges of this Indenture.
SECTION 2.11. Cancellation
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer or
exchange, payment, replacement or cancellation, except as expressly permitted by
this Indenture. The Company may not issue new Notes to replace Notes that have
been redeemed or paid or that have been delivered to the Trustee for
cancellation. All canceled Notes held
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by the Trustee shall be destroyed and certification of their destruction
delivered to the Company unless by a written order delivered to the Trustee at
the time such canceled Notes are delivered to the Trustee, signed by one Officer
of the Company, the Company shall direct that canceled Notes be returned to it.
SECTION 2.12. Defaulted Interest
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
payment date, in each case as provided in the Notes and in Section 4.1 hereof.
The Company shall, with the consent of the Trustee, fix or cause to be fixed
each such special record date and payment date. At least 15 days before the
special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
SECTION 2.13. CUSIP Number
The Company in issuing the Notes shall use a CUSIP number, and
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the certificates representing the Notes, and
that reliance may be placed only on the other identification numbers printed on
the certificates representing the Notes. The Company will promptly notify the
Trustee of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys
On each Interest Payment Date and each date on which payments in
respect of the Notes are required to be made pursuant to the terms of this
Indenture, the Company shall, not later than 11:00 a.m., New York City time,
deposit with the Paying Agent in immediately available funds money sufficient to
make any cash payments due on such date in a timely manner which permits the
Paying Agent to remit payment to the Holders on such date.
SECTION 2.15. Liquidated Damages Under Registration Rights Agreement
Under certain circumstances, the Company shall be obligated to
pay certain Liquidated Damages to the Holders, all as set forth in Section 2 of
the Registration Rights Agreement.
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ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.1. Notice to Trustee
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date (unless a
shorter notice period shall be satisfactory to the Trustee or a different notice
period is set forth in Section 3.7 hereof), an Officers' Certificate setting
forth (i) the Section 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.
If the Company is required to make an offer to purchase Notes
pursuant to the provisions of Sections 4.14 or 4.15 hereof, it shall furnish to
the Trustee, at least 30 days before the scheduled purchase date, an Officers'
Certificate setting forth (i) the Section of this Indenture pursuant to which
the offer to purchase shall occur, (ii) the terms of the offer, (iii) the
purchase price, (iv) the principal amount of the Notes to be purchased, and (v)
further setting forth a statement to the effect that (a) the Company or one of
its Subsidiaries has made an Asset Sale and there are Excess Proceeds
aggregating more than $2.0 million and the amount of such Excess Proceeds or (b)
a Change of Control has occurred, as applicable.
SECTION 3.2. Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, the
Trustee shall, unless otherwise set forth herein, select the Notes to be
redeemed among the Holders of the Notes pro rata, by lot or in accordance with a
method which the Trustee considers to be fair and appropriate (and in such
manner as complies with applicable legal, principal national securities
exchanges and depositary requirements, if any). In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company and the Registrar
(if other than the Trustee) in writing of the Notes selected for redemption and,
in the case of any Note selected for partial redemption, the principal amount at
maturity thereof to be redeemed. Notes and portions of them selected shall be in
face amounts of $1,000 or whole multiples of $1,000. 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.
In the event the Company is required to make an Asset Sale Offer
pursuant to Section 3.9 and Section 4.14, and the amount of the Net Proceeds
from the Asset Sale is not evenly divisible by $1,000, the Trustee shall
promptly refund to the Company the portion of such Excess Proceeds that is not
necessary to purchase the immediately lesser principal amount of Notes that is
so divisible.
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SECTION 3.3. Notice of Redemption
Subject to the provisions of Sections 3.9 and 4.15 hereof, at
least 30 days but not more than 60 days before a redemption date (unless a
different notice period is set forth in Section 3.7 hereof), the Company shall
mail by first class mail a notice of redemption to each Holder of Notes to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price, separately stating the amount of any
accrued and unpaid interest and Liquidated Damages, if any, to be paid
in connection with the redemption;
(3) 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 cancellation of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment together with accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date, interest ceases to accrue on
and after the redemption date on Notes or portions of Notes called for
redemption;
(7) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes; and
(9) the aggregate principal amount of Notes being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at its expense; provided, however,
that the Company shall deliver 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.
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SECTION 3.4. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section
3.3 herein, Notes called for redemption become due and payable on the redemption
date at the redemption price stated in such notice. A notice of redemption may
not be conditional.
SECTION 3.5. Deposit of Redemption Price
Not later than 11:00 a.m. on or before the redemption date, the
Company shall deposit with the Trustee (to the extent not already held by the
Trustee) or with the Paying Agent money in immediately available funds
sufficient to pay the redemption price, together with accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date on all Notes to
be redeemed. The Trustee or the Paying Agent shall return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amount necessary to pay the redemption price of, and accrued and unpaid
interest and Liquidated Damages, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an Interest Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest and Liquidated Damages, if
any, shall be paid to the Person in whose name such Note was registered at the
close of business on such record date. Upon surrender of a Note for redemption
in accordance with the notice given pursuant to Section 3.3 hereof, such Note
shall be purchased by the Company at the redemption price, together with accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, premium and
Liquidated Damages, if any, from the redemption date until such principal,
premium or Liquidated Damages, if any, is paid, and to the extent lawful on any
interest not paid on such unpaid principal, premium or Liquidated Damages, if
any, in each case at the rate provided in the Notes and in Section 4.1 hereof.
SECTION 3.6. Notes Redeemed in Part
Upon surrender and cancellation of a Note that is redeemed in
part only, the Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the surrendered and canceled original Note.
SECTION 3.7. Optional Redemption
The Notes are not redeemable at the Company's option prior to
July 31, 2002. Thereafter, the Notes shall be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount at maturity) set forth below, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on July 31 of the years
indicated below:
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Year Percentage
---- ----------
2002..................................... 106.9375%
2003..................................... 103.4688%
2004 and thereafter...................... 100.0000%
Notwithstanding the foregoing, upon the occurrence of a TNS/TTC
Transaction, the Company may, at its option, by giving notice of redemption at
any time not less than 30 days nor more than 60 days prior to such transaction,
redeem all, but not less than all, of the outstanding Notes concurrently with
the consummation of such transaction at redemption price equal to, at any time
on or prior to July 31, 2002, 100% of the Accreted Value thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, plus the applicable
Make-Whole Premium and after such date at the amount that would be payable to
the holders if the Company on such date were to redeem the Notes. On the date
fixed for redemption in connection with a TNS/TTC Transaction, the Company will
deposit with the Trustee sufficient monies to redeem in full the Notes and
deliver to the Trustee a solvency opinion (from a nationally recognized
investment bank with expertise in giving solvency opinions) dated the date of
the consummation of such transaction and stating that after giving effect to the
redemption of the Notes the Company will be solvent.
SECTION 3.8. Mandatory Redemption
The Company shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes. However, as
described in Sections 3.9, 4.14 and 4.15, the Company may be obligated, under
certain circumstances, to make an offer to purchase (i) all outstanding Notes at
a redemption price of 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of repurchase (or, in the case of repurchase of Notes prior to July 31, 2002, at
a purchase price equal to 101% of the Accreted Value thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase,
upon a Change of Control or a TNS/TTC Transaction; and (ii) outstanding Notes
with a portion of the Net Proceeds of Asset Sales at a redemption price of 101%
of the Accreted Value thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase.
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds
Any Asset Sale Offer pursuant to Section 4.14 shall remain open
for at least 30 and not more than 40 days, except to the extent that a longer
period is required by applicable law (the "Offer Period"). On a date within five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.14 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.
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The Company shall comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-1, in connection
with any offer required to be made by the Company to repurchase the Notes as a
result of an Asset Sale Offer or a TNS/TTC Put Option Offer. To the extent that
the provisions of any securities laws or regulations conflict with provisions of
this Section 3.9 or Section 4.15, the Company shall comply with the applicable
securities laws or regulations and shall not be deemed to have breached its
obligations hereunder by virtue thereof.
If the Purchase Date is on or after an Interest Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
and Liquidated Damages, if any, shall be paid to the Person in whose name a Note
is registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.14 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price, separately stating the
amount of any accrued and unpaid interest and Liquidated Damages, if
any, and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payments,
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 Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(f) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing such Holder's
election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered
by the Holders exceeds the Offer Amount, the Trustee shall select the
Notes to be purchased on a pro rata
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basis (with such adjustments as may be deemed appropriate by the Trustee
so that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(h) that Holders whose Notes are 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 the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.9. The Company, the Depository or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase plus accrued and unpaid interest and
Liquidated Damages, if any, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company shall authenticate and mail
or deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.9 and
Section 4.14, any purchase pursuant to this Section 3.9 shall be made pursuant
to the provisions of Sections 3.1 through 3.6 hereof.
No repurchase of Notes under this Section 3.9 shall be deemed to
be a redemption of Notes.
ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Notes
The Company shall pay the principal (or, if prior to July 31,
2001, the Accreted Value), premium, if any, and interest, if any, on the Notes
on the dates and in the manner provided in the Notes and in this Indenture.
Principal (or, if prior to July 31, 2001, the Accreted Value), premium, if any,
and interest, if any, shall be considered paid on the date due if the Paying
Agent, other than the Company or any of its Subsidiaries or Affiliates, holds on
or before that date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium and
interest, if any, then due. The Company shall pay all Liquidated Damages, if
any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement. If any Liquidated Damages become payable, the
Company shall not later than three Business Days prior to
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the date that any payment of Liquidated Damages is due (i) deliver an Officers'
Certificate to the Trustee setting forth the amount of Liquidated Damages
payable to Holders and (ii) instruct the Paying Agent to pay such amount of
Liquidated Damages to Holders entitled to receive such Liquidated Damages.
The Company shall pay interest (including post-petition interest
under any Bankruptcy Law) on overdue principal (or, if prior to July 31, 2001,
the Accreted Value), and premium, if any, from time to time on demand at the
rate equal to 1% per annum in excess of the then applicable interest or
accretion rate on the Notes to the extent lawful; the Company shall pay interest
(including post-petition interest under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) 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.
SECTION 4.2. Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or exchange, where Notes may be presented or surrendered for payment
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company 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 Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the office of the Trustee at State
Street Bank and Trust Company, N.A., 61 Broadway - Concourse Level - Corporate
Trust Window, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as one such office or agency of the
Company in accordance with Section 2.3.
SECTION 4.3. Reports
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall furnish to the
Holders of Notes (i) within 45 days following the end of each fiscal quarter and
90 days following the end of each fiscal year, respectively, 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
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"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 Subsidiaries and, with respect to the annual information
only, a report thereon by the Company's independent certified public accountants
and (ii) all current reports that would be required to be filed with the SEC on
Form 8-K if the Company were required to file such reports. In addition, whether
or not required by the rules and regulations of the SEC, the Company shall file
a copy of all such information and reports with the SEC for public availability
(unless the SEC will not accept such filing) and make such information available
to securities analysts and prospective investors upon request.
(b) Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA Section 314(a).
(c) For so long as any Transfer Restricted Securities remain
outstanding, the Company shall furnish to all Holders or beneficial owners of
Notes and securities analysts and prospective investors of the Notes, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.4. Compliance Certificate
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, but not less often than annually, 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 each of
the Company and its Subsidiaries has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge each of the Company
and its Subsidiaries has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture, and is not in default in the performance
or observance of any of the terms, provisions and conditions hereof or thereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge and what action
each is taking or proposes to take with respect thereto).
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.3(a) above shall be
accompanied by a written statement of the Company's independent certified public
accountants (who shall be a firm of established national reputation reasonably
satisfactory to the Trustee) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
which would lead them to believe that either the Company or any of its
Subsidiaries has violated any provisions of Article 4, 5 or 6 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument referred to in Section 6.1(5), an
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Officers' Certificate specifying such Default, Event of Default or other event
of default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.5. Taxes
The Company shall, and shall cause its Subsidiaries to, pay or
discharge prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings and for
which adequate reserves, to the extent required under GAAP, have been taken.
SECTION 4.6. Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.7. Company and Corporate Existence and Maintenance of Properties and
Insurance
Subject to Section 4.15 and Article 5 hereof, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with their respective
organizational documents (as the same may be amended from time to time) and its
(and its Subsidiaries') rights (charter and statutory), licenses and franchises;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary, if the Board of Directors of the Company shall determine in good
faith that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its respective Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.
The Company shall, and shall cause each of its Subsidiaries to,
maintain its properties in good working order and condition (subject to ordinary
wear and tear) and make all reasonably necessary repairs, renewals,
replacements, additions and improvements required for it to actively conduct and
carry on its business; provided, however, that nothing in this Section 4.7 shall
prevent the Company or any of its Subsidiaries from discontinuing the operation
and maintenance of any of its properties if such discontinuance is, in the good
faith judgment of the Board of Directors or other governing body of the Company
or the Subsidiary concerned, as the case may be, desirable in the conduct of its
businesses and is not adverse in any material respect to the Holders.
The Company shall maintain insurance against loss or damage of
the kinds that, in the good faith judgment of the Company, are adequate and
appropriate for the conduct of the business
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of the Company and its Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the good faith judgment of the Company, for
companies similarly situated in the industry.
SECTION 4.8. Limitation on the Incurrence of Indebtedness
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt); provided, however, that, so long as no Default or Event of Default has
occurred and is continuing, the Company and any Guarantor may incur Indebtedness
(including Acquired Debt) if the Consolidated Leverage Ratio is less than or
equal to 5.50 to 1.00.
The foregoing provisions will not apply to:
(i) the incurrence by the Company and the Guarantors of
Indebtedness pursuant to the Bank Credit Facility in an aggregate
principal amount not to exceed 80% of the Company's receivables that are
less than 60 days past due at any one time outstanding less any Net
Proceeds of Asset Sales applied to permanently reduce the Bank Credit
Facility pursuant to the provisions described under Section 4.14.
(ii) the incurrence by the Company and its Subsidiaries of
Existing Indebtedness;
(iii) the incurrence by the Company and its Subsidiaries of
Indebtedness represented by the Notes, the Guarantees, the Exchange
Notes and the Guarantees thereunder, and this Indenture;
(iv) the incurrence by the Company or any of its Subsidiaries of
Indebtedness (A) represented by 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 such Subsidiary or (B) in connection with the
acquisition of assets or a new Subsidiary; provided, that the aggregate
principal amount (or accreted value, as applicable) of Indebtedness
incurred pursuant to clause (A) and (B) of this clause (iv), together
with any other outstanding Indebtedness incurred pursuant to this clause
(iv), does not exceed $10.0 million at any one time outstanding;
(v) the incurrence of intercompany Indebtedness between or among
the Company and any of its Wholly Owned Subsidiaries; provided that any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Wholly Owned Subsidiary of the Company, or any sale or other transfer of
any such Indebtedness to a Person that is neither the Company nor a
Wholly Owned Subsidiary of the Company, shall be deemed to constitute an
incurrence of such Indebtedness by the Company or such Subsidiary, as
the case may be;
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(vi) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Debt in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund
Indebtedness that was permitted by this Indenture to be incurred (other
than Indebtedness incurred under clause (i) above);
(vii) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
indebtedness that is permitted by the terms of this Indenture to be
outstanding; and
(viii) the incurrence by the Company of Indebtedness (other than
secured Acquired Debt) in an aggregate principal amount not to exceed
1.0 times the sum of the net cash proceeds received by the Company after
the date of this Indenture (other than in respect of Disqualified Stock)
in connection with any Public Offerings; provided that such Indebtedness
(i) does not mature prior to the maturity of the Notes, (ii) has a
Weighted Average Life to Maturity at greater than the Notes and (iii) is
made expressly subordinated to the Notes.
SECTION 4.9. Limitation on Restricted Payments
The Company shall not, and shall not permit any of its
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
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company), other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or dividends or distributions payable to the Company or
any Wholly Owned Subsidiary of the Company; (ii) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, any payment in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any Subsidiary or other Affiliate of the Company
(other than any such Equity Interests owned by the Company or any Wholly Owned
Subsidiary of the Company); (iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value, prior to a scheduled
mandatory sinking fund payment date or final maturity date, any Indebtedness
that is subordinated to the Notes or any Guarantee; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(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 Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter measurement
period, have been permitted by virtue of the Company's Consolidated
Leverage Ratio, to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Leverage Ratio test set forth in Section
4.8 hereof; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries on or
after the Issue Date (excluding
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Restricted Payments permitted by clauses (ii), (iii) and (iv) of the
next succeeding paragraph), is less than the sum of (1) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the Issue Date to the end of the Company's most
recently ended fiscal quarter for which financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (2) 100% of the aggregate net cash proceeds received by
the Company as capital contributions or from the issue or sale since the
Issue Date of Equity Interests of the Company or of debt securities of
the Company that have been converted into such Equity Interests (other
than (A) Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Company, (B) Disqualified Stock or debt securities
that have been converted into Disqualified Stock and (C) any such net
cash proceeds utilized as the basis to incur Indebtedness under Section
4.8(viii) hereof, plus (3) to the extent that any Restricted Investment
that was made after the Issue Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (A) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such Restricted
Investments (but, in either case, only to the extent not included in
subclause (1) of this clause (c)).
The foregoing provisions will not prohibit: (i) the payment of
any dividend or other distribution within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have complied with
the provisions of this Indenture; (ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
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 or other
acquisition shall be excluded from clause (c) of the preceding paragraph; (iii)
the defeasance, redemption or repurchase of subordinated Indebtedness with the
net cash proceeds from an incurrence of Permitted Refinancing Debt or the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (c) of the preceding paragraph; (iv) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests held by any member
of the Company's (or any of its Subsidiaries') management pursuant to any
management equity subscription agreement, stock option or similar employee
incentive arrangement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not exceed
$1.0 million in any twelve-month period; and provided, further, that such
repurchase, redemption or other acquisition or retirement may not include any
Equity Interests owned, directly or indirectly, by the Principals; and (v) any
dividend or distribution in the form of all of the capital stock of TNS or TTC
or all or substantially all of the assets comprising TNS's ATM Network or TTC's
business, provided that no assets of the Company or any of its other
Subsidiaries shall have been or will be transferred or licensed to the
Subsidiary being divested by the Company other than on an arm's-length basis and
in the ordinary course and provided, further, that concurrently with the
consummation of such transaction (A) the Company deposits with the Trustee
sufficient monies to redeem in full the Notes and concurrently therewith redeems
the Notes as set forth under Section 3.7 and Section 3.9 or if the Company has
prior to such transaction given holders
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of the Notes the right to put the Notes to the Company concurrently with the
consummation of such transaction, then the Company will only be obligated to
deposit with the Trustee sufficient monies to redeem in full those Notes as to
which Holders have demanded redemption and (B) the Company delivers to the
Trustee a solvency opinion (from a nationally recognized investment bank with
expertise in giving solvency opinions), dated the date of the consummation of
such transaction and stating that after giving effect to the redemption of the
Notes as described above the Company will be solvent, provided, that any such
dividend or distribution shall nonetheless be treated as a Restricted Payment
for all other purposes including without limitation under clause (c).
The amount of all Restricted Payments other than cash shall be
the fair market value (evidenced by an Officers' Certificate delivered to the
Trustee) on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred by the Company or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. The fair market value of any non-cash
Restricted Payment in excess of $2.5 million shall be determined by the Board of
Directors of the Company whose resolution with respect thereto shall be
delivered to the Trustee, such determination to be based upon an opinion or
appraisal issued by an unaffiliated accounting, appraisal or investment banking
firm of national standing. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by Section 4.9 hereof were computed, which
calculations may be based upon the Company's latest available financial
statements.
SECTION 4.10. Limitation on Liens
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any income or
profits therefrom, or assign or convey any right to receive income
therefrom, unless the Notes are directly secured equally and ratably with the
obligation or liability secured by such Lien and except Permitted Liens.
SECTION 4.11. Limitation on Transactions with Affiliates
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been obtained
in a comparable transaction (as determined in good faith by the Board of
Directors) with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the fairness
to the Holders of such
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Affiliate Transaction from a financial point of view issued by an unaffiliated
accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, transactions between or among the Company and its
Subsidiaries and Restricted Payments and Permitted Investments that are
permitted by the provisions under Section 4.9 hereof, in each case shall not be
deemed Affiliate Transactions.
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not, and shall not permit any of its
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
Subsidiary to (i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries on its (1) Capital Stock or (2) with respect
to any other interest or participation in, or measured by, its profits, or (b)
pay any indebtedness owed to the Company or any of its Subsidiaries, (ii) make
loans or advances to the Company or any of its Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (a)
Existing Indebtedness as in effect on the date of this Indenture, (b) this
Indenture, the Notes and the Guarantees, (c) applicable law, (d) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted to be incurred by the terms of
this Indenture, (e) customary non-assignment provisions in leases entered into
in the ordinary course of business and consistent with past practices, (f)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, or (g) Permitted Refinancing Debt, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Debt are no more restrictive taken as a whole than those contained
in the agreements governing the Indebtedness being refinanced.
SECTION 4.13. Business Activities
The Company shall not, directly or indirectly, engage in any
business other than the Telecommunications Business.
SECTION 4.14. Asset Sales
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in an Asset Sale unless (i) the Company or such
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the assets or Equity Interests issued or sold or otherwise disposed
of and (ii) at least 80% of the consideration therefor received by the Company
or such Subsidiary is in the form of Cash Equivalents; provided that the amount
of (a) any liabilities (as shown on the Company's or such Subsidiary's most
recent balance sheet) of the Company or any Subsidiary (other than contingent
liabilities and liabilities that are by their terms
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subordinated to the Notes) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company or such
Subsidiary from further liability and (b) any notes or other obligations
received by the Company or such Subsidiary from such transferee that are
immediately converted by the Company or such Subsidiary into Cash Equivalents
(to the extent of the cash received) shall be deemed to be Cash Equivalents for
purposes of this provision.
Within 270 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or such Subsidiary may apply such Net Proceeds (i) to
permanently reduce borrowings under the Bank Credit Facility (and to
correspondingly reduce commitments with respect thereto) or (ii) to make capital
expenditures or acquire long-term assets in the same line of business as the
Company was engaged immediately prior to such Asset Sale or, in the case of a
sale of accounts receivable in connection with any accounts receivable
financing, for working capital purposes. Pending the final application of any
such Net Proceeds, the Company may temporarily reduce senior indebtedness or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $2.0
million, the Company will be required to make an offer to all Holders of Notes
(an "Asset Sale Offer") to purchase the maximum principal amount at maturity of
Notes that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 101% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon (or, in the case of
an offer to purchase that would be consummated prior to July 31, 2001, at a
purchase price equal to 101% of the Accreted Value thereof, plus Liquidated
Damages thereon, if any) to the date of purchase, in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate
Accreted Value of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes (subject to the restrictions of this Indenture). If
the Accreted Value of Notes 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 offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
The Asset Sale Offer must be commenced within 30 days following
the Asset Sale that triggers the Company's obligation to make the Asset Sale
Offer and remain open for at least 30 and not more than 40 days (unless required
by applicable law). The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer.
SECTION 4.15. Change of Control or a TNS/TTC Transaction
Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 face amount or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
date of repurchase (or, in the case of repurchase of Notes prior to July 31,
2001, at a purchase price equal to 101% of
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the Accreted Value thereof, plus Liquidated Damages thereon, if any, to the date
of repurchase) (the "Change of Control Payment"). A notice of a Change of
Control Offer shall be prepared by the Company and shall be mailed by the
Company with a copy to the Trustee or, at the option of the Company and at the
expense of the Company, by the Trustee within 10 days following a Change of
Control to each Holder of the Notes and such Change of Control Offer must remain
open for at least 30 and not more than 40 days (unless required by applicable
law).
Upon the occurrence of a TNS/TTC Transaction, if the Company does
not exercise its right to redeem the Notes concurrently with the consummation of
the TNS/TTC Transaction or has not made an offer to each Holder of Notes to
repurchase the Notes at the TNS/TTC Transaction Purchase Price concurrently with
the consummation of such transaction in a manner that otherwise complies with
the notice requirements and clauses (a) and (b) below of this sentence, the
Company shall be required to (a) deposit with the Trustee upon consummation of
such transaction sufficient monies to redeem in full the Notes, (b) delivered to
the Trustee with a solvency opinion (from a nationally recognized investment
bank with expertise in giving solvency opinions) dated the date of the
consummation of such transaction and stating that after giving effect to the
redemption of the Notes the Company will be solvent and (c) within ten days of
the consummation of such transaction make an offer (a "TNS/TTC Put Option
Offer") to each Holder to repurchase all or any part (equal to $1,000 face
amount or an integral multiple thereof) of each Holder's Notes at an offer price
(the "TNS/TTC Transaction Purchase Price") in cash equal to, at any time on or
prior to July 31, 2002, the Accreted Value thereof, plus accrued and unpaid
interest and Liquidated Damages, if any thereon, and the applicable Make-Whole
Premium and after such date the amount that would be payable to the Holders of
each Note to be purchased if the Company on such date were to redeem the Notes
(the "TNS/TTC Put Option Payment"). The Company shall have the right to make a
TNS/TTC Put Option Offer not more than 60 nor less than 30 days prior to the
consummation of the TNS/TTC Transaction.
The notice to each Holder of the Notes shall state: (1) that the Change
of Control Offer or the TNS/TTC Put Option Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn will be accepted for
payment; (2) the purchase price, separately stating the amount of any accrued
and unpaid interest and Liquidated Damages, if any, and the purchase date, which
will be no earlier than 30 days nor later than 60 days from the date such notice
is mailed (the "Change of Control Payment Date" or the "TNS/TTC Put Option
Payment Date"); (3) that any Note not tendered will continue to accrue or
accrete interest, as the case may be; (4) that, unless the Company defaults in
the payment of the Change of Control Payment or the TNS/TTC Put Option Payment,
all Notes accepted for payment pursuant to the Change of Control Offer or the
TNS/TTC Put Option Offer will cease to accrue or accrete interest, as the case
may be, after the Change of Control Payment Date or the TNS/TTC Put Option
Payment Date; (5) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer or the TNS/TTC Put Option Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date or the TNS/TTC Put Option Payment
Date; (6) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the second Business Day
preceding
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the Change of Control Payment Date or the TNS/TTC Put Option Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holders, the principal amount at maturity of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Notes
purchased; (7) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount at maturity or an integral multiple thereof; and (8)
the circumstances and material facts regarding the Change of Control or TNS/TTC
Transaction (including but not limited to information with respect to the
historical consolidated financial information of the Company and pro forma
consolidated financial information of the Company after giving effect to the
Change of Control or TNS/TTC Transaction, information regarding the Person or
Persons acquiring control, to the extent reasonably available, and the business
plans of such Person or Persons with respect to the Company, to the extent
reasonably available). The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Notes in connection with a Change of Control or
TNS/TTC Transaction.
On the Change of Control Payment Date or the TNS/TTC Put Option
Payment Date, as the case may be, the Company shall, to the extent lawful, (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer or TNS/TTC Put Option Offer, as the case may be, (ii)
deposit with the Paying Agent, unless previously deposited, an amount equal to
the Change of Control Payment or the TNS/TTC Put Option Payment, as the case may
be, in respect of all Notes or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of the Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to each Holder of Notes so tendered the Change of Control Payment or the
TNS/TTC Put Option Payment, as the case may be, for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each such new Note will be in a
principal amount at maturity of $1,000 or an integral multiple thereof. Prior to
complying with the provisions of this Section 4.15, and in any event within 90
days following a Change of Control, the Company shall either repay all
outstanding Senior Debt of the Company or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt of the Company to permit
the repurchase of Notes required by this Section 4.15. The Company shall
publicly announce the results of the Change of Control Offer or TNS/TTC Put
Option Offer, as the case may be, on or as soon as practicable after the Change
of Control Payment Date or the TNS/TTC Put Option Payment Date, as the case may
be.
Other than as specifically provided in this Section 4.15, any
purchase pursuant to this Section 4.15 shall be made pursuant to the provisions
of Section 3.1 through 3.6 hereof.
SECTION 4.16. Payments for Consent
The Company shall not, and shall not permit any of its
Subsidiaries or Affiliates to, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or
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otherwise, to any Holder of any Notes for or as an inducement to any consent,
waiver or amendment of any terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid or is paid to all Holders of the
Notes which so consent, waive or agree to an amendment in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
SECTION 4.17. Limitation on Issuances and Sales of Capital Stock of Subsidiaries
The Company (i) shall not, and shall not permit any of its
Subsidiaries to, transfer, convey, sell or otherwise dispose of any Capital
Stock of any Subsidiary of the Company to any Person (other than the Company or
a Wholly Owned Subsidiary of the Company), unless (a) such transfer, conveyance,
sale or other disposition is of all of the Capital Stock of such Subsidiary
owned by the Company and its Subsidiaries and (b) such transaction is conducted
in accordance with Section 4.14 hereof and (ii) will not permit any Subsidiary
of the Company to issue any of its Equity Interests (other than, if required by
law, shares of its Capital Stock constituting directors' qualifying shares) to
any Person other than to the Company or a Wholly Owned Subsidiary of the
Company. The Company will not be obligated to comply with the provisions of this
Section 4.17 in connection with the sale, assignment, transfer, lease,
conveyance or other disposition of up to 50% of the capital stock of TNS
provided that no assets of the Company or any of its other Subsidiaries shall
have been or will be transferred or licensed to TNS other than on an
arm's-length basis and in the ordinary course and immediately after giving
effect to such transaction and any Restricted Payment made from the Net Proceeds
of such transaction (assuming for purposes of such definition that such
transaction was an Asset Sale) the Notes are rated investment grade by ▇▇▇▇▇'▇
or Standard & Poor's and the Company otherwise complies with Section 4.14
hereof.
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Merger, Consolidation or Sale of Assets
(a) The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving entity), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another corporation, Person or
entity, unless (i) the Company is the surviving entity or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes,
the Guarantees and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee; (iii) immediately after such
transaction, no Default or Event of Default exists; and (iv) except in the case
of a merger of the Company with or into a Wholly Owned Subsidiary of the
Company, the Company or the entity or Person formed by or
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surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (a) will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (b) at the time of such transaction
and immediately after giving effect to such transaction, would be able to incur
at least $1.00 of additional Indebtedness pursuant to the Consolidated Leverage
Ratio test set forth in the first paragraph of Section 4.8 hereof. The Company
will not be obligated to comply with provisions of Section 5.1 in connection
with a TNS/TTC Transaction so long as concurrently with the consummation of such
transaction (i) the Company deposits with the Trustee sufficient monies to
redeem in full the Notes and concurrently therewith redeems the Notes as set
forth under Section 4.15 or if the Company has prior to such transaction given
Holders of the Notes the right to put the Notes to the Company concurrently with
the consummation of such transaction, then the Company will only be obligated to
deposit with the Trustee sufficient monies to redeem in full those Notes as to
which Holders have demanded redemption and (ii) the Company delivers to the
Trustee a solvency opinion (from a nationally recognized investment bank with
expertise in giving solvency opinions) dated the date of the consummation of
such transaction and stating that after giving effect to the redemption of the
Notes as described above the Company will be solvent.
(b) The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction subject to the foregoing paragraph (a)
an Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and such supplemental indenture comply
with this Indenture. The Trustee shall be entitled to conclusively rely upon
such Officers' Certificate and Opinion of Counsel.
SECTION 5.2. Successor Person Substituted
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the successor
Person 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 referring to the "Company" shall
refer to or include instead the successor Person and not the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default
An "Event of Default" occurs if:
(1) the Company defaults in the payment of the principal of or
premium, if any, on any Note when the same becomes due and payable (upon
Stated Maturity, acceleration, optional redemption, required purchase
(whether pursuant to Sections 4.14 or 4.15 or otherwise) or otherwise);
or
(2) the Company defaults in the payment of an installment of
interest on, or Liquidated Damages, if any, with respect to, any of the
Notes, when the same becomes due and payable, which default continues
for a period of 30 days; or
(3) the Company fails to comply with the provisions described
under Sections 4.9, 4.14, 4.15, 4.17 or Article 5 hereof; or
(4) the Company or a Guarantor, if applicable, fails to comply
with any of its covenants or agreements contained in the Notes or this
Indenture (other than a default specified in clause (1), (2) or (3)
above) and such default continues for a period of 30 days after notice
of such default requiring the Company to remedy the same shall have been
given to the Company; or
(5) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default
(a) is caused by failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case described in clauses (a) and (b) of this
subsection (5), the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $2.0 million or more; or
(6) the Company or any of its Subsidiaries fails to pay one or
more final judgments against the Company or any Subsidiary in an
aggregate amount in excess of $2.0 million and either (a) any creditor
commences enforcement proceedings upon any such judgment or (b) such
judgments are not paid, discharged or stayed for a period of 60 days
from the entry thereof;
(7) any of the Guarantees of the Guarantors ceases to be in full
force and effect or any of such Guarantees is declared to be null and
void and unenforceable or any of such Guarantees
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is found to be invalid or any Guarantor, or any Person acting on behalf
of a Guarantor, denies such Guarantor's liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with the
terms of this Indenture);
(8) the Company or any of its Subsidiaries, pursuant to or within
the meaning of any Bankruptcy Law:
(A) ommences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability to pay debts as the
same become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Subsidiaries in an involuntary case or proceeding,
(B) appoints a Custodian of the Company, or any of its
Subsidiaries, for all or substantially all of its property, or
(C) orders the liquidation of the Company or any of its
Subsidiaries,
and, in each case, the order or decree remains unstayed and in effect
for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
In the case of any Event of Default pursuant to the provisions of
this Section 6.1 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company or the Guarantors with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to Section 3.7
hereof, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes. If an
Event of Default occurs prior to July 31, 2002, by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company or the
Guarantors with the intention of avoiding the prohibition on redemption of the
Notes
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prior to such date, then the premium specified in this Indenture shall
also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
SECTION 6.2. Acceleration
If an Event of Default (other than an Event of Default specified
in clauses (8) and (9) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount at
maturity of the then outstanding Notes by written notice to the Company and the
Trustee may declare the Notes to be due and payable immediately. Upon such
declaration, the principal of (or, if prior to July 31, 2001, the Accreted Value
of), Liquidated Damages and accrued and unpaid interest on the Notes, if any,
shall be due and payable immediately. If an Event of Default specified in clause
(8) or (9) of Section 6.1 occurs, such amounts shall ipso facto become and be
immediately due and payable without any notice, declaration or other act on the
part of the Trustee or any Holder. The Holders of a majority in principal amount
of the then outstanding Notes by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or any other Obligation that has become due solely because
of the acceleration) have been cured or waived.
SECTION 6.3. Other Remedies
If an Event of Default occurs and is continuing, the Trustee may
and shall at the direction of the Holders of 25% in principal amount at maturity
of the then outstanding Notes pursue any available remedy (under this Indenture
or otherwise) to collect the payment of principal, premium, interest or
Liquidated Damages, if any, on the Notes or to enforce the performance of any
provision of the Notes, this Indenture or the Registration Rights Agreement.
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 Notes in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Defaults
Subject to Sections 2.9, 6.7 and 9.2, Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all the Notes waive an existing Default or Event of
Default and its consequences, except a continuing Default or Event of Default in
the payment of the principal amount (or, on or prior to July 31, 2001, the
Accreted Value) or premium, interest or Liquidated Damages, if any, with respect
to any Note held by a non-consenting Holder. 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.
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SECTION 6.5. Control by Majority
Subject to Section 2.9, the Holders of a majority in aggregate
principal amount at maturity of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. Subject to Section
7.1, 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. Subject to the provisions of TIA Section315, the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.6. Limitation on Suits
A Holder of Notes may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount at maturity
of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee in its sole discretion
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of Notes may not use this Indenture to prejudice the rights of another
Holder of Notes or to obtain a preference or priority over another Holder of
Notes.
SECTION 6.7. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, interest, or
Liquidated Damages, if any, with respect to the Notes, on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee
If an Event of Default specified in Section 6.1(1) or (2) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against
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the Company for the whole amount of principal, interest and Liquidated Damages,
if any, remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.9. Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Notes allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Notes), their creditors or their property 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 of Notes 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 of Notes, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Notes 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 of Notes any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of Notes in any such proceeding.
SECTION 6.10. Priorities
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, interest and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and interest,
respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes.
SECTION 6.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the 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 does not apply to a suit by the Trustee, a suit by a Holder to
enforce the provisions of Section 6.7 hereof, or a suit by a Holder or Holders
of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee
(1) If a Default or an Event of Default known to the Trustee has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs.
(2) Except during the continuance of a Default or an Event of
Default:
(A) The duties of the Trustee shall be determined solely
by the TIA or express provisions of this Indenture and the Trustee need
perform, and be liable for (as set forth herein), only those duties that
are specifically set forth in the TIA or this Indenture and no others,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(B) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that this paragraph does not limit the effect of paragraph
(2) of this Section 7.1.
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(4) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section 7.1.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties hereunder, 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.
(6) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2. Rights of Trustee
(1) The Trustee may conclusively rely and shall be protected in
relying upon any resolution, document, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond or other document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability,
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(3) The Trustee may act through its agent and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(6) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture
including, without limitation, the provisions of Section 6.5 hereof, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
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SECTION 7.3. Definitive Rights of Trustee
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision hereof, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.5. Notice of Defaults
If a Default or Event of Default occurs and is continuing and if
it is actually known to a Responsible Officer of the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default or Event of Default within 30
days after it occurs. Except in the case of a Default or Event of Default in
payment on any Note pursuant to Section 6.1(1) or (2), the Trustee may withhold
the notice if it in good faith determines that withholding the notice is in the
interests of Holders of Notes.
SECTION 7.6. 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 Holders of Notes
a brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA,
a copy of each report at the time of its mailing to Holders of Notes shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange and the Trustee shall comply with TIA Section 313(d).
SECTION 7.7. Compensation and Indemnity
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Except as otherwise expressly provided herein, the
Company shall reimburse the Trustee promptly upon request for all reasonable
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disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services in accordance with any provision of this Indenture
(including, without limitation, the reasonable compensation, expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ (A) in connection with the preparation, execution and delivery of
this Indenture, any waiver or consent hereunder, any modification or termination
hereof, or any Event of Default or alleged Event of Default; (B) if an Event of
Default occurs, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings relating thereto; (C)
in connection with the administration of the Trustee's rights pursuant hereto;
or (D) in connection with any removal of the Trustee pursuant to subsection 7.8
hereof), except such disbursements, advances and expenses as may be attributable
to its negligence or bad faith.
The Company shall indemnify the Trustee against any and all
losses, liabilities, obligations, damages, penalties, judgments, actions, suits,
proceedings, reasonable costs and expenses (including reasonable fees and
disbursements of counsel) of any kind whatsoever which may be incurred by the
Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) arising out of or in connection with the acceptance or
administration of its duties under this Indenture; provided, however, that the
Company need not reimburse any expense or indemnify against any loss,
obligation, damage, penalty, judgment, action, suit, proceeding, reasonable cost
or expense (including reasonable fees and disbursements of counsel) of any kind
whatsoever which may be incurred by the Trustee in connection with any
investigative, administrative or judicial proceeding (whether or not such
indemnified party is designated a party to such proceeding) in which it is
determined that the Trustee acted with negligence, bad faith or willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. Unless otherwise set forth
herein, the Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(7) or (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 7.8. Replacement of Trustee
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company by at least 30 days' advance
written notice. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any Holder of Notes who
has been a Holder of Notes for at least six months fails to comply with Section
7.10, such Holder of Notes may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee to all Holders in the manner
provided herein. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.7. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company' obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
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No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article 7.
SECTION 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee; provided that such successor is otherwise eligible hereunder.
SECTION 7.10. Eligibility; Disqualification
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof or territory or of the District of Columbia
authorized under such laws to exercise corporate trustee power, shall be subject
to supervision or examination by Federal, state, territorial or District of
Columbia authority and shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10 it shall resign immediately
in the manner and with the effect specified in this Article 7. If the Trustee
has or shall acquire a conflicting interest within the meaning of the TIA, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provision of, the TIA and this Indenture.
This Indenture shall always have a Trustee who satisfies the
requirements of the TIA, including TIA Sections 310(a)(1) and 310(a)(5).
The Trustee is subject to TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of the Board of Directors of the
Company, evidenced by a resolution set forth in an Officers' Certificate, at any
time, elect to have either Section 8.2 or 8.3 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
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SECTION 8.2. Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all their other
obligations under such Notes and this Indenture (and the Trustee, promptly on
demand of and at the expense of the Company, shall execute proper instruments
prepared by the Company acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive solely from
the trust fund described in Section 8.4 hereof, and as more fully set forth in
such Section, payments in respect of the principal, premium, interest and
Liquidated Damages, if any, on such Notes when such payments are due, (b) the
Company's obligations with respect to outstanding Notes under Article 2 and
Section 4.2 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.2 notwithstanding the prior exercise of
its option under Section 8.3 hereof.
SECTION 8.3. Covenant Defeasance
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released from
their obligations under the covenants contained in Section 4.3(a), 4.4, 4.5,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 and Article 5
hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein or in any other document, and such omission to comply shall not
constitute a Default or Event of Default under Section 6.1 hereof, but, except
as specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(3),
6.1(4), 6.1(5) and 6.1(6) and, with respect to any Subsidiary, 6.1(7), 6.1(8)
and 6.1(9) hereof shall not constitute Events of Default.
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SECTION 8.4. Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance, as applicable:
(a) the Company must irrevocably deposit or cause to be deposited
with the Trustee, in trust, for the benefit of the Holders of the Notes,
cash in United States dollars, non-callable Government Securities which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, cash, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and
discharge, the principal, premium, interest and Liquidated Damages, if
any, on the outstanding Notes on the Stated Maturity or on the
applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Section 6.1(8) or
6.1(9) hereof are concerned, at any time in the period ending on the
91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
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(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over any other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
SECTION 8.5. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, interest and Liquidated
Damages, if any, but such money and Government Securities need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
SECTION 8.6. Repayment to Company
(a) Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
(b) Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request in the form of an
Officers' Certificate any money held by them for the payment of principal,
premium, interest or Liquidated Damages, if any, that remains
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unclaimed for two years after such principal, interest, premium, if any, or
Liquidated Damages, if any, became due and payable, and, thereafter, Holders
entitled to the money must look to the Company for payment of such money as
creditors and all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
SECTION 8.7. Reinstatement
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may; provided that, if the Company makes any payment of principal
of, premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
SECTION 8.8. Discharge of Liability on Securities; Defeasance
When (a) (i) the Company delivers to the Trustee all outstanding
Notes for cancellation (other than Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.7 and Notes
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) or (ii) all outstanding Notes have become due and
payable, whether at maturity or on a specified redemption date as a result of
the mailing of a notice of redemption pursuant to Article 3 hereof, (b) the
Company irrevocably deposits or causes to be deposited with the Trustee as trust
funds in trust solely for that purpose an amount of money sufficient to pay and
discharge at maturity or upon redemption all outstanding Notes, including
interest, premium and Liquidated Damages, if any, thereon, and the Company pays
or causes to be paid all other sums payable hereunder by the Company, (c) the
Company has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or redemption, as
the case may be; and (d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with; then this Indenture shall cease to be of further effect
except for (i) the provisions set forth in Article 2, Sections 4.1, 4.2, 6.7,
7.7, 8.5, 8.6 and 8.7 hereof and (ii) if the Notes have been called for
redemption and the redemption date has not occurred, the Company's obligation to
pay the redemption price on such redemption date. The Trustee shall acknowledge
satisfaction and discharge of this Indenture promptly on demand of the Company
after receipt from the Company of an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company.
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ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders
The Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of
Notes:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to provide for the assumption of the Company's and the
Guarantor's obligations to Holders of the Notes in the case of a merger
or consolidation;
(5) to provide security for the Notes;
(6) to add Guarantees with respect to the Notes;
(7) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Notes; or
(8) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company, authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment which affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2. With Consent of Holders
Except as otherwise provided herein, the Company and the Trustee
may amend or supplement this Indenture or the Notes with the written consent of
the Holders of at least a majority in principal amount at maturity of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for the Notes).
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Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.6 hereof, the Trustee shall join with the Company in the execution of such
supplemental indenture or amendment unless such supplemental indenture or
amendment affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture, amendment
or waiver. Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority in
principal amount at maturity of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder of Notes affected, an
amendment or waiver under this Section may not (with respect to any Notes held
by a non-consenting Holder of Notes):
(1) reduce the principal amount at maturity of Notes whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest
or Liquidated Damages, if any, including default interest, on any Note
or change or have the effect of changing the definition of Accreted
Value;
(3) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the Notes
(other than provisions relating to Sections 4.14 and 4.15) or reduce the
prices at which the Company shall offer to purchase such Notes pursuant
to Sections 3.9, 4.14 or 4.15 hereof;
(4) make any Note payable in money other than that stated in the
Note;
(5) make any change in Section 6.4 or 6.7 hereof or in this
sentence of this Section 9.2;
(6) waive a Default or Event of Default in the payment of
principal or Accreted Value of or premium, interest or Liquidated
Damages, if any, on the Notes (other than a Default in the payment of an
amount due as a result of an acceleration if the Holders of Notes
rescind such acceleration pursuant to Section 6.2);
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(7) waive a redemption payment with respect to any Note (other
than a payment required under Section 4.14 or 4.15); or
(8) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture.
SECTION 9.3. Compliance with Trust Indenture Act
If at the time of an amendment to this Indenture or the Notes,
this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note 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 consenting Holder's Note, even if notation of the consent
is not made on any Note. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Note or portion of
such Note by notice to the Trustee or the Company received before the date
specified in any solicitation or waiver. Subject to Section 9.2 hereof, a
supplemental indenture, amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Holder of Notes.
The Company may fix a record date for determining which Holders
must consent to such supplemental indenture, amendment or waiver or action
permitted by Section 6.5. If the Company fixes a record date, the record date
shall be fixed at the later of (i) 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.5, or (ii) such other
date as the Company shall designate.
SECTION 9.5. Notation on or Exchange of Notes
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment or waiver.
SECTION 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive,
if requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 7.1, shall be fully
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protected in relying upon, an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that such amendment or supplemental indenture is authorized
or permitted by this Indenture, that it is not inconsistent herewith or
therewith, and that it will be valid and binding upon the Company in accordance
with its terms. The Company may not sign an amendment or supplemental indenture
until the Board of Directors of the Company approves it.
ARTICLE 10
GUARANTEES
SECTION 10.1. Unconditional Guarantee
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (such guarantee to be referred to herein as the "Guarantee") to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, the Notes or the Obligations of the Company
hereunder or thereunder, that: (i) the principal of and interest on the Notes
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Notes and all other obligations of the Company 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 (ii) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
10.5. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and in
this Guarantee. If any Noteholder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Noteholder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, 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 6 for the purposes of this 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 acceleration of such obligations as
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provided in Article 6, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee.
SECTION 10.2. Severability
In case any provision of this Guarantee 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 10.3. Release of a Guarantor
Upon (a) the sale or other disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company or (b) a sale
or other disposition of all of the Capital Stock of any Guarantor, and which
sale or disposition is otherwise in compliance with Section 4.14 hereof and the
other terms of this Indenture, then such Guarantor or the entity acquiring such
assets, as applicable, shall be deemed released from all obligations under this
Article 10 without any further action required on the part of the Trustee or any
Holder.
The Trustee shall execute and deliver an appropriate instrument
furnished to it evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate and Opinion of Counsel certifying as to
the compliance with this Section 10.3. Any Guarantor not so released remains
liable for the full amount of principal of and interest on the Notes as provided
in this Article 10.
SECTION 10.4. Limitation of Guarantor's Liability
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor (including, but not limited
to, the Guarantor Senior Indebtedness of such Guarantor) and after giving effect
to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 10.6, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.5. Guarantors May Consolidate, etc., on Certain Terms
(a) Nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor or shall prevent any sale of assets or conveyance
of the property of a Guarantor as an entirety or substantially
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as an entirety, to the Company or another Guarantor. Upon any such
consolidation, merger, sale or conveyance, the Guarantee given by such Guarantor
shall no longer have any force or effect.
(b) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into a corporation or
corporations other than the Company or another Guarantor (whether or not
affiliated with the Guarantor) or shall prevent any sale of assets or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety,
to a corporation or corporations other than the Company or another Guarantor
(whether or not affiliated with the Guarantor); provided, however, that, subject
to Sections 10.3 and 10.5(a), immediately after such transaction, and giving
effect thereto such transaction does not (a) violate any covenants set forth
herein or (b) results in a Default or Event of Default under this Indenture that
is continuing.
SECTION 10.6. Contribution
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments of damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's obligations with
respect to the Guarantee. "Adjusted Net Assets" of such Guarantor at any date
shall mean the lesser of the amount by which (x) the fair value of the property
of such Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date, but excluding
liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts including, without limitation, Guarantor Senior Debt (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guaran tee), excluding debt in respect of the Guarantee of such Guarantor, as
they become absolute and matured.
SECTION 10.7. Waiver of Subrogation
Until all Guarantee Obligations are paid in full, each Guarantor
hereby irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under the Guarantee
and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or Note on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such
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amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.7 is knowingly made in contemplation of such benefits.
SECTION 10.8. Execution of Guarantee
To evidence their guarantee to the Noteholders set forth in this
Article 10, the Guarantors hereby agree to execute the Guarantee in
substantially the form included in Exhibit A, which shall be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each Guarantor
hereby agrees that its Guarantee set forth in this Article 10 shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee. Each such Guarantee shall be signed on behalf of
each Guarantor by one officer (who shall have been duly authorized by all
requisite corporate actions) prior to the authentication of the Note on which it
is endorsed, and the delivery of such Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signature upon the Guarantee may be
by manual or facsimile signature of such officer and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such officer who shall
have signed the Guarantee shall cease to be such officer before the Note on
which such Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Guarantee had not ceased to be such officer of the Guarantor.
SECTION 10.9. Waiver of Stay, Extension or Usury Laws
Each Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, 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 each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the provision of the TIA shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 11.2. Notices
Any notice or communication by the Company, the Guarantors or the
Trustee to the others is duly given if in writing and delivered by hand
delivery, by first-class mail (registered or certified, return receipt
requested), by facsimile or by overnight air courier guaranteeing next day
delivery, to the others' addresses as follows:
If to the Company or any Guarantor:
TeleHub Communications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division:
TeleHub Communications Corporation --
13 7/8% Senior Discount Notes due 2005
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company, the Guarantors or the Trustee, by notice to the
others, may designate additional or different addresses of subsequent notices or
communications.
All notices and communications (other than those sent to Holders
of Notes) shall be deemed to have been duly received: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt is confirmed, if sent by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be mailed
by first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder of Notes or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes.
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If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of
Notes, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3. Communication by Holders with Other Holders
Holders of Notes may communicate pursuant to TIA Section 312(b)
with other Holders of Notes with respect to their rights under this Indenture or
the Notes. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c). Upon qualification of this Indenture under
the TIA, the Trustee shall otherwise comply with TIA Section 312(b).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
(if required by the TIA or this Indenture):
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any provided for in
this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.5. Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(1) statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with, provided,
however, that with respect to matters of fact, an Opinion of Counsel may
rely upon an Officers' Certificate or a certificate of a public
official.
SECTION 11.6. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a
meeting of Holders of Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.7. Legal Holidays
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in The City of New York, in the city in which the Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.8. No Recourse Against Others
(a) No past, present or future director, officer, employee,
agent, or stockholder of the Company or any Subsidiary (other than the Company
or its Subsidiaries), as such, shall have any liability for any Obligations of
the Company or the Guarantors under the Notes, the Guarantees or this Indenture
or for any claim based on, in respect of or by reason of such Obligations or
their creation. Each Holder of Notes, by accepting a Note, waives and releases
all such liability. The waiver and release shall be part of the consideration
for the issuance of the Notes.
(b) Notwithstanding the foregoing, nothing in this provision
shall be construed as a waiver or release of any claims under the federal
securities laws.
SECTION 11.9. GOVERNING LAW
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
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SECTION 11.10. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11. Successors
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. Severability
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable in any jurisdiction,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other jurisdiction and in every other respect, and of
the remaining provisions, shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 11.13. Counterpart Originals
This Indenture may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of them together shall
represent the same agreement.
SECTION 11.14. 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 or provisions hereof.
[signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the undersigned have caused this Indenture to
be executed as of the date first above written.
TELEHUB COMMUNICATIONS CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
TELEHUB NETWORK SERVICES CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
TELEHUB TECHNOLOGIES CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
TELEHUB LEASING CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
STATE STREET BANK AND TRUST COMPANY,
as trustee
By:
---------------------------------
Name: ▇▇▇ ▇▇
Title: Assistant Vice President
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EXHIBIT A
FORM OF NOTE
[Face of Note]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. THE "ISSUE PRICE" IS $490.34 PER
$1,000 PRINCIPAL AMOUNT AT MATURITY. THE ISSUE DATE OF THIS NOTE IS JULY 30,
1998 AND THE YIELD TO MATURITY IS 13 7/8% (COMPOUNDED SEMI-ANNUALLY). THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES PER
$1,000 STATED PRINCIPAL AMOUNT AT MATURITY IS $1,064.66 PLUS ALL CURRENT
INTEREST (AS DEFINED). FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THE STATED
REDEMPTION PRICE AT MATURITY IS $1,555. FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES, A SIGNIFICANT AMOUNT OF ORIGINAL ISSUE DISCOUNT, TAXABLE AS ORDINARY
INCOME, WILL BE RECOGNIZED BY A HOLDER OF NOTES AS SUCH DEFERRED INTEREST (AS
DEFINED) ACCRUES FROM THE ISSUE DATE.
TELEHUB COMMUNICATIONS CORPORATION
13 7/8% SERIES [A/B] SENIOR DISCOUNT NOTE DUE 2005
No. ___ Up to $125,000,000
CUSIP NO.
TeleHub Communications Corporation, a Nevada corporation, promises
to pay to ________________________ or registered assigns, the stated principal
amount at maturity of ____________________ Dollars ($__________) [if this Notes
is a Global Note, then insert "(which stated principal amount at maturity may
from time to time be increased or decreased to such other stated principal
amounts at maturity (which shall not exceed $125,000,000 at any time) by
adjustments made to the schedule annexed hereto by the Trustee hereinafter
referred to in accordance with the indenture referred to on the reverse of this
Note)] on July 31, 2005.
Current Interest Payment Dates: January 31 and July 31, commencing
on January 31, 2002.
Regular Record Dates: January 15 and July 15.
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 at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TELEHUB COMMUNICATIONS CORPORATION
By:
-------------------------------
Certificate of Authentication:
STATE STREET BANK AND TRUST COMPANY, as Trustee,
certifies that this is one of the [Global] Notes
referred to in the within-mentioned Indenture.
By:
-------------------------------------------
Authorized Signature
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[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 (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
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. THIS SECURITY IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. THIS GLOBAL NOTE
MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME
OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF
EXCEPT IN THE CIRCUMSTANCES SET FORTH IN SECTION 2.6 OF THE INDENTURE, AND MAY
NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.6 OF THE INDENTURE. BENEFICIAL INTEREST IN
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 2.6 OF
THE INDENTURE.]*/
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) WHO IS AN INSTITUTION (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH THE RULE 904
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE WHICH IS
THREE YEARS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE OF THIS NOTE AND
THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER
OF THIS NOTE (THE "RESALE RESTRICTION TERMINATION DATE") OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE, EXCEPT (A) TO THE ISSUER, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
------------------
*/ This paragraph should be included only if the Note is issued in global form.
-
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PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH THE RESALE PROVISIONS OF RULE 144A UNDER
THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRUSTEE A WRITTEN CERTIFICATION CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
PURSUANT TO THE RESALE LIMITATIONS PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (F) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT OR (G)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (BASED, IN THE CASE OF CLAUSES (C), (D), (F) AND (G) ABOVE,
UPON AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER IF THE ISSUER SO
REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT
THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE AT ALL TIMES
WITHIN ITS CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE
RESTRICTION TERMINATION DATE."]**/
[THE NOTES REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $1,000 AGGREGATE PRINCIPAL
AMOUNT AT MATURITY OF 137/8% SENIOR DISCOUNT NOTES DUE 2005 (THE "NOTES") OF
TELEHUB COMMUNICATIONS CORPORATION (THE "COMPANY") AND A WARRANT. THE WARRANTS
AND THE NOTES WILL NOT TRADE SEPARATELY UNTIL THE EARLIEST OF (I) OCTOBER 30,
1998, (II) A "CHANGE OF CONTROL" (AS DEFINED IN THE INDENTURE GOVERNING THE
NOTES), (III) THE OCCURRENCE OF AN EVENT OF DEFAULT (AS DEFINED IN THE INDENTURE
GOVERNING THE NOTES), (IV) THE DATE ON WHICH A REGISTRATION STATEMENT WITH
RESPECT TO THE NOTES OR AN EXCHANGE OFFER (AS DEFINED IN THE INDENTURE GOVERNING
THE NOTES) FOR THE NOTES IS DECLARED EFFECTIVE, OR (V) SUCH EARLIER DATE AS
-----------------
**/ This paragraph should not be included on Exchange Notes received in an
-- Exchange Offer.
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DETERMINED BY BANCBOSTON SECURITIES INC. IN ITS SOLE DISCRETION (SUCH
DATE, THE "SEPARATION DATE").***/]
[BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL NOTE OR THE
PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN
THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING
RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY RESTRICTED PERIOD"
(WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE SECURITIES ACT)
AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE
THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S.
PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE
REGISTRATION UNDER THE SECURITIES ACT. DURING SUCH 40-DAY RESTRICTED PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY
ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH THE EUROCLEAR SYSTEM OR CEDEL S.A.
AND ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT. DURING SUCH 40-DAY
RESTRICTED PERIOD, INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY NOT
BE TRANSFERRED TO INSTITUTIONS THAT ARE "ACCREDITED INVESTORS" AS DEFINED IN
RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT BUT NOT QUALIFIED
INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT. HOLDERS
OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY
PURCHASER OF SUCH RESALE RESTRICTIONS, IF THEN APPLICABLE.****/]
-------------
***/ This paragraph should not be included on Exchange Notes received in an
--- Exchange Offer.
****/ This paragraph should be included only if the Note is a temporary
---- Regulation S Global Note.
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[Reverse of Note]
TELEHUB COMMUNICATIONS CORPORATION
13 7/8% SERIES [A/B] SENIOR DISCOUNT NOTE DUE 2005
1. Interest. TeleHub Communications Corporation, a Nevada
corporation (the "Company"), promises to pay the stated principal amount at
maturity of this Note on July 31, 2005. This Note will bear interest on the
Accreted Value, and subsequent to July 31, 2001 on the principal amount, at a
rate of 13 7/8% per annum computed on a semiannual bond equivalent basis from
the Issue Date. In the period prior to July 31, 2001, interest at a rate of 13
7/8% per annum will accrete on the Accreted Value but will not be payable in
cash ("Deferred Interest"). Deferred Interest will be paid at maturity of this
Note and will constitute a part of the stated amount at maturity of this Note.
From July 31, 1998 until maturity, interest at a rate of 13 7/8% per annum
("Current Interest") on the stated principal amount at maturity of this Note
will be payable in cash semiannually (to the Holder of record at the close of
business on the January 15 and July 15, as the case may be, immediately
preceding the applicable Current Interest Payment Date) on each Current Interest
Payment Date, commencing on January 31, 2002.The Company will pay interest and
Liquidated Damages, if any, payable pursuant to Section 2 of the Registration
Rights Agreement referred to below, semiannually in arrears on January 31 and
July 31 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal or
Accreted Value, as applicable, and premium, if any, from time to time on demand
at a rate equal to 1% per annum in excess of the interest rate then in effect to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (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. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the record date
immediately preceding the Current Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal or Accreted Value, as applicable, premium, interest
and Liquidated Damages, if any, at the office or agency of the Company
maintained for such purpose within the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their respective addresses set forth
in the register of Holders; provided that payment by wire transfer of
immediately available/same day funds will be required with respect to principal,
premium, interest and Liquidated Damages, if any, on, all Global Notes. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice to
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any Holder. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar, except that for purposes of payments on the Notes pursuant to
Sections 7 and 8 hereof, neither the Company nor any of its Affiliates may act
as Paying Agent.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of July 30, 1998 (the "Indenture"), among the Company, the Guarantors
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbb) as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are unsecured senior
general obligations of the Company limited to $125,000,000 aggregate principal
amount at maturity (subject to Section 2.7 of the Indenture).
5. Optional Redemption. The Notes are not redeemable at the
Company's option prior to July 31, 2002. Thereafter, the Notes will be subject
to redemption at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on July 31 of the
years indicated below:
Year Percentage
--------- ---------------
2002.............................. 106.9375%
2003.............................. 103.4688%
2004 and thereafter............... 100.0000%
Notwithstanding the foregoing, upon the occurrence of a TNS/TTC
Transaction, the Company may, at its option, by giving notice of redemption at
any time not less than 30 days nor more than 60 days prior to such transaction,
redeem all, but not less than all, of the outstanding Notes concurrently with
the consummation of such transaction at redemption price equal to, at any time
on or prior to July 31, 2002, 100% of the Accreted Value thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, plus the applicable
Make-Whole Premium and after such date at the amount that would be payable to
the holders if the Company on such date were to redeem the Notes. On the date
fixed for redemption in connection with a TNS/TTC Transaction, the Company will
deposit with the Trustee sufficient monies to redeem in full the Notes and
deliver to the Trustee a solvency opinion (from a nationally recognized
investment bank with expertise in giving solvency opinions) dated the date of
the consummation of such transaction and stating that after giving effect to the
redemption of the Notes the Company will be solvency.
6. Notice of Redemption. Subject to the provisions of the
Indenture, notice of redemption will be mailed by first class mail to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date (unless a different notice period is set forth in Section 5
hereof) to each Holder of Notes to be redeemed. If less than all Notes are to be
redeemed
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at any time, the Trustee shall, unless otherwise set forth in the Indenture,
select the Notes to be redeemed in multiples of $1,000 pro rata, by lot or in
accordance with a method which the Trustee considers to be fair and appropriate.
On and after the redemption date interest ceases to accrue on Notes or portions
of them called for redemption (unless the Company shall default in the payment
of the redemption price together with accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date).
7. Change of Control. In the event of a Change of Control of the
Company, each Holder of Notes will have the right to require the Company to
repurchase all or any part (equal to $1,000 face amount or an integral multiple
thereof) of such Holder's Notes, at an offer price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Change of Control Payment Date (or, in the
case of repurchase of Notes prior to July 31, 2001, at a purchase price equal to
101% of the Accreted Value thereof, plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the Change of Control Payment Date).
8. Asset Sales. In the event of certain Asset Sales, the Company
may be required to make an Asset Sale Offer to purchase the maximum principal
amount of Notes that may be purchased out of Excess Proceeds, at an offer price
in cash equal to 101% of the principal amount of the Notes plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase
(or, in the case of repurchase of Notes prior to July 31, 2001, at a purchase
price equal to 101% of the Accreted Value thereof, plus Liquidated Damages
thereon, if any, to the date of repurchase).
9. TNS/TTC Put or Call Option. Upon the occurrence of a TNS/TTC
Transaction, the Company will be required to make an offer to repurchase all or
any part (equal to $1,000 face amount or an integral multiple thereof), or may,
at its option redeem all, but not less than all, of the outstanding Notes at a
redemption price equal to, at any time on or prior to July 31, 2002, the
Accreted Value thereof, plus Liquidated Damages and accrued and unpaid interest
thereon, if any, and the applicable Make-Whole Premium, and after such date, the
amount that would be payable to the Holders if the Company on such date were to
redeem the Notes.
10. Restrictive Covenants. The Indenture imposes certain
limitations on, among other things, the ability of the Company to consolidate or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, the ability of
the Company or its Subsidiaries to dispose of certain assets, to declare or pay
dividends or make certain other distributions and payments, to make certain
investments or purchase, redeem, or otherwise acquire or retire for value Equity
Interests, to incur additional Indebtedness or incur Liens and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
11. Denominations, Transfer, Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 stated principal
amount at maturity and integral multiples thereof. A Holder may transfer or
exchange Notes in accordance with the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Company may require a Holder to pay any taxes and
fees required by law
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or permitted by the Indenture. Neither the Company nor the Registrar shall be
required to transfer or exchange any Notes selected for redemption. Also, the
Company need not transfer or exchange any Notes for a period of 15 days before a
selection of Notes to be redeemed.
12. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes and neither the Company, the Trustee
nor any Agent shall be affected by notice to the contrary.
13. Unclaimed Money. If money for the payment of principal,
premium, interest or Liquidated Damages, if any, remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at its
request. After that, all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
14. Amendment, Supplement, Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount at maturity of
the Notes then outstanding (including consents obtained in connection with a
tender offer of exchange offer for the Notes). Holders of a majority in
principal amount at maturity of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all the Notes waive an existing Default
or Event of Default and its consequences, except a continuing Default or Event
of Default in the payment of principal of (or, if prior to July 31, 2001, the
Accreted Value of), Liquidated Damages, if any, and interest with respect to any
Note held by a non-consenting Holder. Without the consent of any Holder, the
Company may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency that does not adversely
affect the rights of any Holder or to provide for uncertificated Notes in
addition to or in place of certificated Notes or to make any change that does
not adversely affect the legal rights of any Holder.
15. Events of Default and Remedies. An Event of Default generally
is: (i) default for 30 days in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, any of the Notes; (ii) default in
payment when due (whether at maturity, upon redemption or repurchase, or
otherwise) of the principal of or premium, if any, on any of the Notes; (iii)
failure by the Company or a Guarantor, if applicable, to comply with certain of
its agreements in the Indenture and the Notes; (iv) failure by the Company or a
Guarantor, if applicable, for 30 days after notice to comply with any of its
covenants or agreements in the Indenture or the Notes other than those referred
to in clauses (i), (ii) and (iii) above; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness (a
"Payment Default") or (b) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case described in clauses (a) and (b) of
this subsection (v), the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has
been a Payment Default or the maturity of which has been so accelerated,
aggregates $2.0 million or more; (vi) failure by the Company or any of its
Subsidiaries
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to pay final judgments aggregating in excess of $2.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days after their entry;
(vii) certain events with respect to the unenforceability of the Guarantees of
the Guarantors; and (viii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Subsidiaries. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount at maturity of
the then outstanding Notes may declare all of the principal of (or, if prior to
July 31, 2001, the Accreted Value of) the Notes, accrued and unpaid interest or
Liquidated Damages, if any, thereon and all other Obligations thereunder, to be
due and payable immediately, except that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to the
Company and any Subsidiary, all outstanding Notes shall become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the Notes may direct
the Trustee in its exercise of any trust or power. The Company must furnish an
annual compliance certificate to the Trustee.
16. Trustee Dealings with Company. State Street Bank and Trust
Company, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company or its respective Subsidiaries or Affiliates with the same rights it
would have if it were not Trustee.
17. No Recourse Against Others. No past, present or future
director, officer, employee, agent or stockholder of the Company, as such, shall
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder, by accepting a Note, waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. Authentication. This Note shall not be valid until the
Trustee or an authenticating agent signs the certificate of authentication on
the other side of this Note.
19. 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).
[20. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement, dated as of the date of the
Indenture (the "Registration Rights Agreement"), by and among the Company, the
Guarantors and the Initial Purchaser. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for the Company's 13 7/8% Series B Senior Discount Notes due 2005 (the
"Exchange Notes"), which have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects as the
Original Notes. The Holders of the Original Notes shall be entitled to receive
certain additional interest payments ("Liquidated Damages") in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and
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in accordance with the terms of the Registration Rights Agreement. Liquidated
Damages which may be payable pursuant to the Registration Rights Agreement shall
be payable in the same manner as set forth herein with respect to the stated
interest. The provision of the Registration Rights Agreement relating to such
additional interest are incorporated herein by reference and made a part hereof
as if set forth herein in full.]*****/
21. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Note Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holder of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
22. GOVERNING LAW. THIS NOTE AND THE INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
23. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture or Registration Rights Agreement.
Requests may be made to: TeleHub Communications Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer.
--------
*****/ This paragraph should not be included on Exchange Notes received in the
Exchange Offer.
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[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR GUARANTEE
The Guarantors (as defined in the Indenture (the "Indenture")
referred to in the Note upon which this notation is endorsed and each
hereinafter referred to as a "Guarantor," which term includes any successor
person under the Indenture) have unconditionally guaranteed on a senior basis
(such guarantee by each Guarantor being referred to herein as the "Guarantee")
(i) the due and punctual payment of the principal of (or, if prior to July 31,
2001, the Accreted Value (as defined in the Indenture) of), Liquidated Damages
(as defined in the Indenture) and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Notes, to the extent lawful, and
the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set forth in Article 10
of the Indenture 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.
No stockholder, officer, director, employee or agent, as such,
past, present or future, of any Subsidiary Guarantor shall have any liability
under the Guarantee by reason of his or its status as such stockholder, officer,
director, employee or agent.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authorization on the Notes upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature on one of its authorized officers.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
TELEHUB NETWORK SERVICES CORPORATION
By:
---------------------------------
Name:
Title:
TELEHUB TECHNOLOGIES CORPORATION
By:
---------------------------------
Name:
Title:
TELEHUB LEASING CORPORATION
By:
---------------------------------
Name:
Title:
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ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________as agent to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Date:
----------------------------------
Signature Guarantee:
------------------------------------------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
In connection with any transfer of this Note the Holder hereof may be required
by the Indenture to deliver to the Trustee and the Registrar a certification
substantially in the form of Exhibit B to the Indenture.
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the appropriate
box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state the
amount (in integral multiples of $1,000):
$
----------------------------------------
Date:
------------------------------------
Signature:
---------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
------------------------------------------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES(3)
The following exchanges of a part of this Global Note for Definitive Notes have
been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized officer of
Date of in Principal Amount Principal Amount of following such Trustee or Note
Exchange of this Global Note this Global Note decrease (or increase) Custodian
-------------- ---------------------- ---------------------- ----------------------- ---------------------
--------------
(3) This schedule should be included only if the Note is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 13 7/8% Series [A/B] Senior Discount Notes due 2005
of TeleHub Communications Corporation
This Certificate relates to $_____ principal amount of Notes held
in */ _______ bookentry or */ ______ definitive form by _________________ (the
"Transferor").
The Transferor:*/
[ ] has requested the Registrar by written order to exchange or register the
transfer of a Note or Notes; or
[ ] has requested the Trustee by written order to exchange its Note or Notes
in definitive, registered form for a beneficial interest in a Global
Note held by the Depository equal to the principal amount of notes it
holds (or the portion thereof indicated above); or
[ ] has requested the trustee by written order to deliver in exchange for
its beneficial interest in a Global Note held by the Depository a Note
or Notes in definitive, registered form equal to its beneficial interest
in such Global Note (or the portion thereof indicated above).
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the transferor is familiar with the
indenture relative to the above captioned Notes and that the transfer of
this Note does not require registration under the Securities Act (as
defined below) because:*
[ ] Such Note is being acquired for the Transferor's own account without
transfer (in satisfaction of Section 2.6(a)(ii)(a), Section 2.6(b)(i) or
Section 2.6(d)(i)(a) of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")), in a transaction meeting the requirements of Rule
144A under the Securities Act.
[ ] Such Note is being transferred outside the U.S. to a foreign person
pursuant to an exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based on an
opinion of counsel if the Company so requests and together with a
certification in substantially the form of Exhibit D to the Indenture).
------------
*/ Check applicable box.
-
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99
[ ] Such Note is being transferred in a transaction meeting the requirements
of Rule 144 under the Securities Act (based on an opinion of counsel if
the Company so requests).
[ ] Such Note is being transferred pursuant to an effective registration
statement under the Securities Act.
[ ] Such Note is being transferred to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (based on an opinion of
counsel if the Company so requests together with a certification in
substantially the form of Exhibit C to the Indenture).
[ ] Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities
Act (based on an opinion of counsel if the Company so requests).
-------------------------------
[INSERT NAME OF TRANSFEROR]
By:
----------------------------
Name:
Title:
DATE: Address:
--------------------------
TO BE COMPLETED BY TRANSFEREE IF SECOND BOX ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: Signed:
------------------------- -------------------------------------
NOTICE: To be executed by an executive
officer
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED BY ACCREDITED INSTITUTIONS
------------ ---, ----
State Street Bank and Trust Company,
as Registrar
Attn: Corporate Trust Division
Ladies and Gentlemen:
In connection with our proposed purchase of $_____ aggregate
principal amount of 13 7/8% Series [A/B] Senior Discount Notes due 2005 (the
"Notes") of TeleHub Communications Corporation (the "Issuer"), an Illinois
corporation, we confirm that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor," and we are acquiring the Notes for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or the laws of any
state or other jurisdiction, and we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with, such restrictions and conditions of the Securities Act.
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as described below. We agree, on our own behalf and on behalf of any
account for which we are purchasing the Notes, and each subsequent holder of the
Notes by its acceptance thereof will agree, not to offer, sell or otherwise
transfer such Notes prior to the date which is two years after the later of the
date of original issue of such Notes and the last date on which the Issuer or
any affiliate of the Issuer was the owner of such Notes (the "Resale Restriction
Termination Date"), except (A) to the Issuer, (B) in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined
therein) in a transaction meeting the requirements of Rule 144A, (C) to an
institutional "accredited investor" (as defined above) that is purchasing for
his own account or for the account of such an "accredited investor," and that,
prior to such transfer, furnishes to the Trustee (as defined in the Indenture) a
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signed letter, substantially identical to this letter, containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the Trustee), (D) pursuant
to the exemption from registration provided by Rule 144 under the Securities
Act, if available, (E) pursuant to an effective registration statement under the
Securities Act, (F) outside the U.S. to a foreign person in a transaction
meeting the requirements of Regulation S under the Securities Act, or (G)
pursuant to any other available exemption from the registration requirements of
the Securities Act (based upon an opinion of counsel reasonably acceptable to
the Issuer if the Issuer so requests), subject in each of the foregoing cases,
to any requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or their control
and to compliance with applicable securities laws of any state of other
jurisdiction. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
4. We understand that, on any proposed offer, sale or other
transfer of any Notes prior to the Resale Restriction Termination Date, we will
be required to furnish to the Trustee and the Issuer such certifications, legal
opinions, and other information as either of them may reasonably require to
confirm that the proposed transaction complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a legend
reflecting the substance of this and the preceding paragraph.
5. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
We acknowledge that you, the Trustee and others are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. We agree to
notify you promptly in writing if any of our representations or warranties
ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
-----------------------------------------------
(Name of Purchaser)
BY:
--------------------------------------
Name:
Title:
Address:
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
----------, -----
State Street Bank and Trust Company,
as Registrar
Attention: Corporate Trust Division
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of 13 7/8% Series [A/B] Senior Discount Notes due 2005 (the
"Notes") of TeleHub Communications Corporation, an Illinois corporation (the
"Company"), we represent that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(iii) no directed selling efforts have been made by us, any of our
affiliates or any person acting on our or their behalf in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
--------------------------------
[Name of Transferor]
BY:
-----------------------------
Name:
Title:
Address:
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