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IMPSAT FIBER NETWORKS, INC.,
as Issuer
IMPSAT S.A.,
as Guarantor
and
THE BANK OF NEW YORK,
as Trustee, Registrar, Paying Agent and Conversion Agent
--------------------
Senior Guaranteed Convertible Notes Indenture
Dated as of _________________
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Series ___ 6% Senior Guaranteed Convertible Notes due 2011
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
------------ ------------------
Section 310(a)(1).....................................................................................7.10
(a)(2).....................................................................................7.10
(b)........................................................................................7.08
Section 313(c).................................................................................7.06; 12.02
Section 314(a).................................................................................4.19; 12.02
(a)(4)..............................................................................4.18; 12.02
(c)(1)....................................................................................12.03
(c)(2)....................................................................................12.03
(e).......................................................................................12.04
Section 315(b).................................................................................7.05; 12.02
Section 316(a)(1)(A)..................................................................................6.05
(a)(1)(B)..................................................................................6.04
(b)........................................................................................6.07
Section 317(a)(1).....................................................................................6.08
(a)(2).....................................................................................6.09
Section 318(a).......................................................................................12.01
(c).......................................................................................12.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
SECTION 1.01. DEFINITIONS...............................................................................1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........................................20
SECTION 1.03. RULES OF CONSTRUCTION....................................................................21
ARTICLE TWO THE SECURITIES.......................................................................................21
SECTION 2.01. FORM AND DATING..........................................................................21
SECTION 2.02. RESTRICTIVE LEGENDS......................................................................22
SECTION 2.03. EXECUTION, AUTHENTICATION AND DENOMINATIONS..............................................23
SECTION 2.04. REGISTRAR, PAYING AND CONVERSION AGENT...................................................24
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST......................................................25
SECTION 2.06. TRANSFER AND EXCHANGE....................................................................25
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES..............................................26
SECTION 2.08. SPECIAL TRANSFER PROVISIONS APPLICABLE TO RESTRICTED SECURITIES..........................27
SECTION 2.09. REPLACEMENT SECURITIES...................................................................28
SECTION 2.10. OUTSTANDING SECURITIES...................................................................29
SECTION 2.11. TEMPORARY SECURITIES.....................................................................29
SECTION 2.12. CANCELLATION.............................................................................30
SECTION 2.13. CUSIP, CINS AND ISIN NUMBERS.............................................................30
SECTION 2.14. DEFAULTED INTEREST.......................................................................30
SECTION 2.15. ISSUANCE OF ADDITIONAL SECURITIES........................................................30
ARTICLE THREE CONVERSION.........................................................................................30
SECTION 3.01. CONVERSION PRIVILEGE.....................................................................30
SECTION 3.02. CONVERSION PROCEDURE.....................................................................31
SECTION 3.03. FRACTIONAL SHARES........................................................................33
SECTION 3.04. TAXES ON CONVERSION......................................................................33
SECTION 3.05. COMPANY TO PROVIDE STOCK.................................................................33
SECTION 3.06. ADJUSTMENT OF CONVERSION PRICE...........................................................33
SECTION 3.07. NO ADJUSTMENT............................................................................37
SECTION 3.08. ADJUSTMENT FOR TAX PURPOSES..............................................................38
SECTION 3.09. NOTICE OF ADJUSTMENT.....................................................................38
SECTION 3.10. NOTICE OF CERTAIN TRANSACTIONS...........................................................38
SECTION 3.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE, TRANSFER OR CONVEYANCE
ON CONVERSION PRIVILEGE..................................................................39
SECTION 3.12. TRUSTEE'S DISCLAIMER.....................................................................40
ARTICLE FOUR COVENANTS...........................................................................................40
i
SECTION 4.01. PAYMENT OF SECURITIES....................................................................40
SECTION 4.02. MAINTENANCE OF OFFICES OR AGENCIES.......................................................40
SECTION 4.03. LIMITATION ON INDEBTEDNESS...............................................................41
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS........................................................43
SECTION 4.05. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES..46
SECTION 4.06. LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES..........47
SECTION 4.07. LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED SUBSIDIARIES.........................47
SECTION 4.08. LIMITATION ON TRANSACTIONS WITH STOCKHOLDERS AND AFFILIATES..............................48
SECTION 4.09. LIMITATION ON LIENS......................................................................49
SECTION 4.10. LIMITATION ON SALE-LEASEBACK TRANSACTIONS................................................49
SECTION 4.11. LIMITATION ON ASSET SALES................................................................50
SECTION 4.12. REPURCHASE OF SECURITIES UPON A CHANGE OF CONTROL........................................50
SECTION 4.13. EXISTENCE................................................................................51
SECTION 4.14. PAYMENT OF TAXES AND OTHER CLAIMS........................................................51
SECTION 4.15. MAINTENANCE OF PROPERTIES AND INSURANCE..................................................51
SECTION 4.16. NOTICE OF DEFAULT........................................................................52
SECTION 4.17. COMPLIANCE CERTIFICATES..................................................................52
SECTION 4.18. COMMISSION REPORTS AND REPORTS TO HOLDERS................................................52
SECTION 4.19. WAIVER OF STAY, EXTENSION OR USURY LAWS..................................................53
SECTION 4.20. ADDITIONAL AMOUNTS.......................................................................53
SECTION 4.21. BOOKS AND RECORDS........................................................................54
ARTICLE FIVE SUCCESSOR CORPORATION; CLAIMED AMOUNTS..............................................................54
SECTION 5.01. WHEN COMPANY AND THE GUARANTOR MAY MERGE, ETC............................................54
SECTION 5.02. SUCCESSOR SUBSTITUTED....................................................................56
SECTION 5.03. DEFINITION OF CLAIMED AMOUNT.............................................................56
ARTICLE SIX DEFAULT AND REMEDIES.................................................................................56
SECTION 6.01. EVENTS OF DEFAULT........................................................................56
SECTION 6.02. ACCELERATION.............................................................................58
SECTION 6.03. OTHER REMEDIES...........................................................................59
SECTION 6.04. WAIVER OF PAST DEFAULTS..................................................................59
SECTION 6.05. CONTROL BY MAJORITY......................................................................59
SECTION 6.06. LIMITATION ON SUITS......................................................................59
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.....................................................60
SECTION 6.08. COLLECTION SUIT BY TRUSTEE...............................................................60
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.........................................................60
SECTION 6.10. PRIORITIES...............................................................................61
SECTION 6.11. UNDERTAKING FOR COSTS....................................................................61
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.......................................................61
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE...........................................................61
SECTION 6.14. DELAY OR OMISSION NOT WAIVER.............................................................62
ii
ARTICLE SEVEN TRUSTEE AND AGENTS.................................................................................62
SECTION 7.01. GENERAL..................................................................................62
SECTION 7.02. CERTAIN RIGHTS...........................................................................62
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.............................................................63
SECTION 7.04. TRUSTEE'S DISCLAIMER.....................................................................63
SECTION 7.05. NOTICE OF DEFAULT........................................................................63
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS............................................................64
SECTION 7.07. COMPENSATION AND INDEMNITY...............................................................64
SECTION 7.08. REPLACEMENT OF TRUSTEE...................................................................64
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.........................................................65
SECTION 7.10. ELIGIBILITY..............................................................................65
SECTION 7.11. MONEY HELD IN TRUST......................................................................66
SECTION 7.12. WITHHOLDING TAXES........................................................................66
SECTION 7.13. BENEFICIAL OWNERSHIP CERTIFICATE.........................................................66
ARTICLE EIGHT DISCHARGE OF INDENTURE.............................................................................66
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.....................................................66
SECTION 8.02. DEFEASANCE AND DISCHARGE OF INDENTURE....................................................67
SECTION 8.03. DEFEASANCE OF CERTAIN OBLIGATIONS........................................................69
SECTION 8.04. APPLICATION OF TRUST MONEY...............................................................71
SECTION 8.05. REPAYMENT TO COMPANY.....................................................................71
SECTION 8.06. REINSTATEMENT............................................................................72
SECTION 8.07. INSIDERS.................................................................................72
ARTICLE NINE REDEMPTION..........................................................................................72
SECTION 9.01. RIGHT OF REDEMPTION......................................................................72
SECTION 9.02. NOTICES TO TRUSTEE.......................................................................72
SECTION 9.03. SELECTION OF SECURITIES TO BE REDEEMED...................................................72
SECTION 9.04. NOTICE OF REDEMPTION.....................................................................73
SECTION 9.05. EFFECT OF NOTICE OF REDEMPTION...........................................................74
SECTION 9.06. DEPOSIT OF REDEMPTION PRICE..............................................................74
SECTION 9.07. PAYMENT OF SECURITIES CALLED FOR REDEMPTION..............................................74
SECTION 9.08. SECURITIES REDEEMED IN PART..............................................................74
SECTION 9.09. OFFER TO PURCHASE........................................................................74
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................................75
SECTION 10.01. WITHOUT CONSENT OF HOLDERS...............................................................75
SECTION 10.02. WITH CONSENT OF HOLDERS..................................................................75
SECTION 10.03. REVOCATION AND EFFECT OF CONSENT.........................................................76
SECTION 10.04. NOTATION ON OR EXCHANGE OF SECURITIES....................................................77
SECTION 10.05. TRUSTEE TO SIGN AMENDMENTS, ETC..........................................................77
SECTION 10.06. CONFORMITY WITH TRUST INDENTURE ACT......................................................77
ARTICLE ELEVEN GUARANTEE OF SECURITIES...........................................................................77
SECTION 11.01. SECURITY GUARANTEE.......................................................................77
iii
SECTION 11.02. OBLIGATIONS UNCONDITIONAL................................................................79
SECTION 11.03. PAYMENTS BY THE GUARANTOR................................................................80
SECTION 11.04. NOTICE TO TRUSTEE........................................................................80
SECTION 11.05. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT............................................80
SECTION 11.06. NET WORTH LIMITATION.....................................................................80
SECTION 11.07. REPRESENTATION AND WARRANTY OF THE GUARANTOR.............................................81
SECTION 11.08. EXPENSES.................................................................................81
SECTION 11.09. SPECIAL WAIVER...........................................................................81
ARTICLE TWELVE MISCELLANEOUS.....................................................................................81
SECTION 12.01. TRUST INDENTURE ACT OF 1939..............................................................81
SECTION 12.02. NOTICES..................................................................................82
SECTION 12.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.......................................83
SECTION 12.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............................................83
SECTION 12.05. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR..............................................83
SECTION 12.06. PAYMENT DATE OTHER THAN A BUSINESS DAY...................................................83
SECTION 12.07. GOVERNING LAW; CONSENT TO JURISDICTION...................................................84
SECTION 12.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............................................84
SECTION 12.09. NO RECOURSE AGAINST OTHERS...............................................................84
SECTION 12.10. SUCCESSORS...............................................................................85
SECTION 12.11. DUPLICATE ORIGINALS......................................................................85
SECTION 12.12. CURRENCY INDEMNITY.......................................................................85
SECTION 12.13. CURRENCY TRANSLATIONS....................................................................85
SECTION 12.14. TABLE OF CONTENTS, HEADINGS, ETC.........................................................86
EXHIBIT A Form of Security.................................................................A-1
EXHIBIT B Form of Certificate of Beneficial Ownership .....................................B-1
iv
SENIOR GUARANTEED CONVERTIBLE NOTES INDENTURE
INDENTURE, dated as of _________________, among IMPSAT FIBER NETWORKS,
INC., a Delaware corporation, as issuer (the "Company"), IMPSAT S.A., an
Argentine corporation, as guarantor (the "Guarantor"), and THE BANK OF NEW YORK,
as trustee, registrar, paying agent and conversion agent (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $67,531,000 aggregate principal
amount of the Company's Series __ 6% Senior Guaranteed Convertible Notes due
2011 (the "Securities") issuable as provided herein. All things necessary to
make this Indenture a valid agreement of the Company and the Guarantor, in
accordance with its terms, have been done, and the Company and the Guarantor
have done all things necessary to make the Securities, when executed by the
Company and authenticated and delivered by the Trustee hereunder and duly issued
by the Company, the valid obligations of the Company and the Guarantor as
hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be a part of and to govern
indentures qualified under the Trust Indenture Act.
AND THIS INDENTURE FURTHER WITNESSETH
The Company, the Guarantor and the Trustee agree as follows for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition.
"Adjusted Consolidated Net Income" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income (or loss) of any Person that is not a
Restricted Subsidiary, except (x) with respect to the Company's or any
Restricted Subsidiary's equity in such net income, to the extent of the amount
of dividends or other distributions actually paid to the Company or any of its
Restricted Subsidiaries by such Person during such period and (y) with respect
to net losses, to the extent of the amount of Investments made by the Company or
any Restricted Subsidiary in such Person during such period; (ii) solely
for the purposes of calculating the amount of Restricted Payments that may be
made pursuant to clause (C) of the first paragraph of Section 4.04 (and in such
case, except to the extent includable pursuant to clause (i) above), the net
income (or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with the Company or any of its
Restricted Subsidiaries or all or substantially all of the property and assets
of such Person are acquired by the Company or any of its Restricted
Subsidiaries; (iii) the net income of any Restricted Subsidiary (other than the
Guarantor) (A) to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of such net income is not at
the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; and (B) equal to the
portion, if any, thereof that would be required to be withheld for taxes with
respect to the payment of dividends or distributions on the Capital Stock of
such Restricted Subsidiary during the relevant period if such net income were to
be declared and distributed to the shareholders of such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable to Asset Sales or
other dispositions not effected in the ordinary course of business; (v) any
extraordinary gains and losses (on an after-tax basis); and (vi) any gains and
losses from a cumulative change in accounting policy.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliated Holders" means any Holder that is an Affiliate of the
Company as of the Closing Date.
"Agent" means any Registrar, Paying Agent, Conversion Agent,
authenticating agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) an investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries; provided that such
Person's primary business is related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the Closing Date or
(ii) an acquisition by the Company or any of its Restricted Subsidiaries of the
property and assets of any Person other than the Company or any of its
Restricted Subsidiaries that constitute substantially all of a division or line
of business of such Person; provided that the property and assets acquired are
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the Closing Date.
2
"Asset Disposition" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) any shares of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the Company or such
Restricted Subsidiary and, in each case, that is not governed by the provisions
of Article Five; provided that "Asset Sale" shall not include (a) sales or other
dispositions of equipment that has become obsolete or no longer useful in the
business of the Company or its Restricted Subsidiaries or inventory, receivables
and other current assets, (b) sales, transfers or other dispositions of assets
constituting a Restricted Payment permitted to be made under Section 4.04, (c)
sales, transfers or other dispositions of assets with a fair market value (as
certified in an Officers' Certificate) not in excess of $1.0 million in any
transaction or series of related transactions, (d) sales or other dispositions
of assets for consideration at least equal to the fair market value of the
assets sold or disposed of, if the consideration received consists solely of
property or assets that would constitute property or assets of the kind
described in clause (B) of Section 4.11, (e) any long-term assignment of
capacity on the Company's telecommunications network in an amount between $1.0
million and $5.0 million pursuant to any transaction or series of related
transactions that has been approved by an affirmative vote of the Board of
Directors of the Company, (f) any long-term assignment of capacity on the
Company's telecommunications network in an amount in excess of $5.0 million
pursuant to any transaction or series of related transactions that has been
approved by an affirmative vote of at least two-thirds of the Board of Directors
of the Company, or (g) issuances and sales of Common Stock of Restricted
Subsidiaries in accordance with clauses (i) or (ii) of Section 4.06.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
3
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of such Board of Directors duly
authorized to act with respect to this Indenture.
"Board Resolution" means, with respect to any Person, a copy of a
resolution, certified by the Secretary or Assistant Secretary of such Person to
have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations under a Capitalized Lease.
"Change of Control" means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other
than any Permitted Investor or any Existing Securityholder or its Affiliates,
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Voting Stock representing more than 30% of the total voting
power of the Voting Stock of the Company on a fully-diluted basis and such
ownership represents a greater percentage of the total voting power of the
Voting Stock of the Company, on a fully-diluted basis, than is held in the
aggregate by the Existing Securityholders and their Affiliates on such date; or
(ii) individuals who on the Closing Date constitute the Company's Board of
Directors (together with any new directors whose election by the Board of
Directors or whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the members of the Board of
Directors then in office who either were members of the Board of Directors on
the Closing Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office; or (iii) the Company shall cease to be the
beneficial owner of a majority of the Voting Stock of the Guarantor or IMPSAT
Comunicacoes Ltda; or (iv) the occurrence of any transaction or event in
connection with which all or substantially all the Company's Common Stock shall
be exchanged for, converted into, acquired for or constitute solely the right to
receive (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) consideration which (a) is not all or substantially all common stock
listed (or, upon consummation of or
4
immediately following such transaction or event, will be listed) on a United
States national securities exchange or approved for quotation on the Nasdaq
National Market or any similar United States system of automated dissemination
of quotations of securities prices and (b) does not have registration rights
applicable thereto on terms no less favorable to the Holder than those contained
in the Registration Rights Agreement.
"Change of Control Redemption Price" has the meaning provided in
Section 4.12.
"Claimed Amount" has the meaning provided in Section 5.03.
"Closing Date" means the date on which the Securities are originally
issued under this Indenture.
"Closing Price" with respect to any securities on any date shall mean
the closing sale price, regular way, on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal security
exchange or quotation system in the United States on which such security is
quoted or listed or admitted to trading, or, the average of the closing bid and
asked prices of such security on the over-the-counter market on the day in
question as reported by the Nasdaq National Market or a similar generally
accepted reporting service, or if not so available, in such manner as furnished
by any New York Stock Exchange member firm selected from time to time by the
Board of Directors for that purpose, or a price determined in good faith by the
Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman, a Vice Chairman, its President or a Vice
President and (ii) by its Chief Financial Officer, Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided that such written request or order may be signed by any two of the
officers or directors listed in clause (i) above in lieu of being signed by one
of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.
5
"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus (without duplication), to the extent such amount was
deducted in calculating such Adjusted Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets) and any minimum net asset taxes payable by any Restricted
Subsidiary in a foreign jurisdiction as a result of generating income before
taxes, (iii) depreciation expense, (iv) amortization expense (excluding
amortization expense attributable to a prepaid cash item that was paid in a
prior period), and (v) all other non-cash items reducing Adjusted Consolidated
Net Income (other than items that will require cash payments and for which an
accrual or reserve is, or is required by GAAP to be, made and other than
amortization expense attributable to a prepaid cash item that was paid in a
prior period), less all non-cash items increasing Adjusted Consolidated Net
Income, and all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP; provided that, if any
Restricted Subsidiary (other than the Guarantor) is not a Wholly-Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount
of the Adjusted Consolidated Net Income attributable to such Restricted
Subsidiary multiplied by (B) the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period by the
Company or any of its Restricted Subsidiaries.
"Consolidated Fixed Charges" means, with respect to the Company and its
Restricted Subsidiaries for any period, the sum, without duplication, of (1)
Consolidated Interest Expense, plus (2) the product of (x) the amount of all
dividend payments on any series of Preferred Stock of the Company and its
Restricted Subsidiaries (other than dividends paid in Capital Stock of the
Company (excluding Disqualified Stock) and other than dividends paid to the
Company or to a Wholly-Owned Restricted Subsidiary of the Company) paid, accrued
or scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any period, the
aggregate of the interest expense of the Company and its Restricted Subsidiaries
for such period determined in accordance with GAAP, plus (to the extent not
included in such aggregate interest expense, and to the extent incurred by the
Company or its Restricted Subsidiaries), without duplication, (a) amortization
of debt discount and amortization of write-off of deferred financing costs; (b)
the interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; (c) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing; (d) the net costs associated with
Interest Rate Agreements; (e) interest paid or accrued (by any Person) on
Indebtedness that is Guaranteed or secured by such Person or any of its
Restricted Subsidiaries); and (f) all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by the Company and its Restricted Subsidiaries during such
period all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP; excluding, however, any amount
of such interest of any Restricted Subsidiary if the net income of such
Restricted Subsidiary is excluded
6
in the calculation of Adjusted Consolidated Net Income pursuant to clause (iii)
of the definition thereof (but only in the same proportion as the net income of
such Restricted Subsidiary is excluded from the calculation of Adjusted
Consolidated Net Income pursuant to clause (iii) of the definition thereof).
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the quarterly or annual consolidated
balance sheet of the Company most recently filed with the Commission or provided
to the Trustee pursuant to Section 4.18, less the amount of stockholders' equity
attributable to Unrestricted Subsidiaries and treating as a liability all
Disqualified Stock or any equity security convertible into or exchangeable for
Indebtedness, each item to be determined in conformity with GAAP (excluding the
effects of foreign currency exchange adjustments under Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 52).
"Conversion Agent" has the meaning provided in Section 2.04. The
Company or any of its Subsidiaries or Affiliates may act as Conversion Agent.
The term "Conversion Agent" includes any additional Conversion Agent.
"Conversion Date" has the meaning provided in Section 3.02.
"Conversion Price" has the meaning provided in Section 3.01.
"Conversion Shares" has the meaning provided for in Section 3.06(d).
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date hereof, located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Current Market Price" shall mean the average of the daily Closing
Prices per share of the Company's Common Stock for the ten consecutive Business
Days immediately prior to the date in question.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees, and
their respective successors.
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event or otherwise is (i) required to be redeemed prior to
Final Maturity, (ii) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to Final Maturity or (iii) convertible
into or
7
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to Final Maturity; provided that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to Final Maturity shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions in favor of Holders that are contained in
Section 4.11 and Section 4.12 and such Capital Stock, or the agreements or
instruments governing the redemption rights thereof, specifically provides that
such provisions will become operative only after the Company's repurchase of
such Securities as are required to be repurchased pursuant to Section 4.11 and
Section 4.12.
"Distributed Securities" has the meaning provided in Section 3.06(d).
"Distribution Date" has the meaning provided for in Section 3.06(d).
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Securityholders" means each holder of Common Stock, or of
securities of the Company convertible into or exchangeable for, Common Stock, in
each case, representing five percent (5%) or more of the Company's total Common
Stock on a fully-diluted basis as of the Effective Date.
"Expiration Time" has the meaning provided in Section 3.06 (e).
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors, whose determination shall
be conclusive if evidenced by a Board Resolution.
"Final Maturity" means the final maturity of the Securities, which is
_________________.
"Fixed Charge Coverage Ratio" means, with respect to the Company and
its Restricted Subsidiaries, on any Transaction Date, the ratio of Consolidated
EBITDA to Consolidated Fixed Charges for the then most recent four fiscal
quarters for which financial statements of the Company have been filed with the
Commission or provided to the Trustee pursuant to Section 4.18 (such four fiscal
quarter period being the "Four Quarter Period"); provided that, in making the
foregoing calculation, (A) pro forma effect shall be given to Asset Sales and
other dispositions not effected in the ordinary course of business and Asset
Acquisitions (including giving pro forma effect to the application of proceeds
of any Asset Sales and other dispositions not effected in the ordinary course of
business) that occur from the beginning of the Four Quarter Period through the
Transaction Date (the "Reference Period"), as if they had occurred and such
8
proceeds had been applied on the first day of such Reference Period; (B) pro
forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset
disposition) that have been made by any Person that has become a Restricted
Subsidiary or has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period that would have required adjustment
under clause (A) had such transactions occurred when such Person was a
Restricted Subsidiary as if such asset dispositions or asset acquisitions had
occurred on the first day of such Reference Period; and (C) pro forma effect
shall be given to any Incurrence, assumption, guarantee, repayment, repurchase
or redemption of any Indebtedness (other than the Incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities) or issuance, repurchase or redemption of
Preferred Stock by the Company or any of its Restricted Subsidiaries during the
Reference Period, as if the same had occurred on the first day of such Reference
Period. Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Fixed Charge
Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the average rate of interest on such Indebtedness in effect on the 30
business days preceding the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by any Interest Rate Agreement, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including, without
limitation, those 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 approved by a significant segment
of the accounting profession and the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports to be filed with the Commission, including the
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the Commission. All ratios and
computations contained or referred to herein shall be computed in conformity
with GAAP applied on a consistent basis.
"Global Security" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by
9
virtue of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guaranteed Indebtedness" has the meaning provided in Section 4.07.
"Guarantor" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Holder" or "Securityholder" means the then registered holder of any
Security.
"HSR Act" has the meaning provided in Section 3.02.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including, with respect to the Company and its Restricted
Subsidiaries, an "Incurrence" of Acquired Indebtedness; provided that neither
the accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following such drawing), (iv) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services, all obligations of such
Person under any title retention agreement and all conditional sale obligations
of such Person, except Trade Payables, (v) all Capitalized Lease Obligations of
such Person and all Attributable Debt in respect of Sale/Leaseback Transactions
entered into by such Person, (vi) all Indebtedness of other Persons secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided that the amount of such Indebtedness shall be the lesser
of (A) the fair market value of such asset at such date of determination and (B)
the amount of such Indebtedness, (vii) the amount of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock, (viii) all Indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person and (ix) to
the extent not otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements. The amount
10
of Indebtedness of any Person at any date shall be (without duplication) the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided (A)
that the amount outstanding at any time of any Indebtedness issued with original
issue discount is the original issue price of such Indebtedness and (B) that
Indebtedness shall not include any liability for federal, state, local or other
taxes.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Interest Payment Date" means each semiannual interest payment date on
____ 15 and ________ 15 of each year, commencing ____ 15, 200_.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers (other than
Unrestricted Subsidiaries of the Company) in the ordinary course of business and
accounts payable to suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable or accounts payable, as
the case may be, on the balance sheet of the Company or its Restricted
Subsidiaries and Trade Payables) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, bonds, notes, debentures or other similar instruments issued by,
such Person and shall include (i) the designation of a Restricted Subsidiary as
an Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock
(or any other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary, including without limitation, by reason of any transaction permitted
by clause (iii) of Section 4.06. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04, (i) "Investment" shall include the fair market
value of the assets (net of liabilities, other than liabilities to the Company
or any of its Restricted Subsidiaries) of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii)
the fair market value of the assets (net of liabilities, other than liabilities
to the Company or any of its Restricted Subsidiaries) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary shall be considered a reduction in the outstanding
Investment in such Unrestricted Subsidiary and (iii) any property transferred to
or from an Unrestricted Subsidiary shall be valued at its fair market value at
the time of such transfer.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or
11
lease in the nature thereof, any sale with recourse against the seller or any
Affiliate of the seller, or any agreement to give any security interest).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc. and its successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale of an
asset or property not constituting Capital Stock, the proceeds of such Asset
Sale in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) actually
incurred related to such Asset Sale, (ii) provisions for all taxes paid or are
payable as a result of such Asset Sale, (iii) payments made to repay
Indebtedness outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold in such Asset Sale or (B) is
required to be paid as a result of such Asset Sale and (iv) appropriate amounts
to be provided by the Company or any Restricted Subsidiary as a reserve against
any liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with GAAP and
(b) with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale, in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents, net of items of the type referred to in clauses (a)(i) and (ii)
above.
"Nortel Financing Agreements" mean (i) the Amended and Restated
Financing Agreement, dated as of _________________, by and among the Guarantor,
Nortel Networks Limited, as administrative agent, Deutsche Bank Trust Company
Americas, as collateral agent (the "Collateral Agent"); and the several lenders
party thereto from time to time, as lenders and (ii) the Amended and Restated
Financing Agreement, dated as of _________________, by and among IMPSAT
Comunicacoes Ltda., Nortel Networks Limited, as administrative agent, Nortel
Networks Limited, as collateral agent, and the several lenders party thereto
from time to time, as lenders.
"Offer to Purchase" means an offer to purchase Securities by the
Company from the Holders commenced by the Company's mailing of a notice to the
Trustee and each Holder stating: (i) the covenant pursuant to which the offer is
being made and that all such Securities validly tendered will be accepted for
payment or, in the case of Offers to Purchase pursuant to Section 4.11, accepted
for payment on a pro rata basis; (ii) the purchase price and the date of
purchase (which shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed) (the "Payment Date"); (iii) that
any such Security not tendered will
12
continue to accrue interest pursuant to its terms; (iv) that, unless the Company
defaults in the payment of the purchase price, any Security accepted for payment
pursuant to the Offer to Purchase shall cease to accrue interest on and after
the Payment Date; (v) that Holders electing to have such Security purchased
pursuant to the Offer to Purchase will be required to surrender the Security,
together with the form entitled "Option of the Holder to Elect Purchase" on the
reverse side of the Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date; (vi) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the third Business Day immediately preceding the Payment Date, a
telegram, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Securities delivered for purchase and a
statement that such Holder is withdrawing his election to have such Securities
purchased; (vii) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided that each Security purchased and
each new Security issued shall be in a principal amount of $1.00 or an integral
multiple thereof and (viii) in the case of an Offer to Purchase pursuant to
Section 4.12, the circumstances and relevant facts giving rise to the Change of
Control. On the Payment Date, the Company shall (i) accept for payment on a pro
rata basis Securities or portions thereof tendered pursuant to an Offer to
Purchase; (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Securities or portions
thereof so accepted together with an Officers' Certificate specifying the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered; provided that each Security
purchased and each new Security issued shall be in a principal amount of $1.00
or an integral multiple thereof. The Company will publicly announce the results
of an Offer to Purchase as soon as practicable after the Payment Date. The
Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will
comply with 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 the event that the Company is required to repurchase Securities pursuant to
an Offer to Purchase.
"Officer" means with respect to any Person, (i) the Chairman of the
Board, the Vice Chairman of the Board, the President, any Vice President, the
Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof; provided that any such certificate may be signed
by any two of the Officers listed in clause (i) of the definition thereof in
lieu of being signed by one Officer listed in clause (i) of the definition
thereof and one Officer listed in clause (ii) of the definition thereof. Each
Officers' Certificate (other than certificates provided pursuant to TIA Section
314(a)(4)) shall include the statements provided for in TIA Section 314(e).
13
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to the Company or the Guarantor, as
applicable. Each such Opinion of Counsel shall include the statements provided
for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Payment Date" has the meaning provided in the definition of "Offer to
Purchase."
"Permitted Investment" means (i) an Investment in the Company or a
Restricted Subsidiary or a Person that will, upon the making of such Investment,
become a Restricted Subsidiary or be merged or consolidated with or into or
transfer or convey all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided that such Person's primary business is related,
ancillary or complementary to the businesses of the Company and its Restricted
Subsidiaries on the Closing Date; (ii) Temporary Cash Investments; (iii)
payroll, travel and similar advances made in the ordinary course of business to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses in accordance with GAAP; (iv) loans or advances to employees
made in the ordinary course of business in accordance with past practice of the
Company or its Restricted Subsidiaries and that do not in the aggregate exceed
$1 million at any time outstanding; (v) stock, obligations or securities
received in satisfaction of judgments, work-outs or similar arrangements; and
(vi) participations in Indebtedness of any Restricted Subsidiary permitted to be
Incurred by clause (x) of the second paragraph of Section 4.03(a).
"Permitted Investor" means (i) any Person that is in the
Telecommunications Business and (A) for its last four consecutive fiscal
quarters has generated revenues of at least $1 billion or earnings before
interest, income taxes, depreciation and amortization of at least $180 million,
or (B) on the date of determination has an equity market capitalization of at
least $3 billion, or (ii) any Subsidiary of any such Person.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, contracts (other
than for Indebtedness), performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course
14
of business (exclusive of obligations for the payment of borrowed money) and any
bank's unexercised right of setoff with respect to deposits made in the ordinary
course of business of the Company or any Restricted Subsidiary; (v) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
detract from the value of the property so encumbered; (vi) Liens (including
extensions and renewals thereof) to finance the acquisition of real or personal
property acquired after the Closing Date; provided that (a) such Lien is created
solely for the purpose of securing Indebtedness Incurred, in accordance with
Section 4.03, (1) to finance the cost (including the cost (other than the
internal costs of the Company or any of its Subsidiaries) of design,
development, acquisition, construction, installation, improvement,
transportation or integration) of acquiring the item of property or assets
subject thereto and such Lien is created prior to, at the time of or within six
months after the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Indebtedness previously so secured, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost and (c) any such Lien
shall not extend to or cover any property or assets other than such item of
property or assets and any improvements on such item; (vii) leases or subleases
granted to others in the ordinary course of business that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (viii) Liens encumbering property or assets
under construction arising from progress or partial payments by a customer of
the Company or its Restricted Subsidiaries relating to such property or assets;
(ix) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease; (x) Liens arising from filing by a lessor
of Uniform Commercial Code financing statements regarding the related lease;
(xi) Liens on property of, or on shares of Capital Stock or Indebtedness of, any
Person existing at the time such Person becomes, or becomes a part of, any
Restricted Subsidiary; provided that (A) such Liens do not extend to or cover
any property or assets of the Company or any Restricted Subsidiary other than
the property or assets acquired and (B) the Indebtedness secured by such Liens
is permitted to be Incurred under clause (viii) of the second paragraph of
Section 4.03(a); (xii) Liens in favor of the Company or any Restricted
Subsidiary; (xiii) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary that does not give rise to an
Event of Default; (xiv) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof; (xv) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods in the ordinary
course of business; (xvi) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are within the general parameters
customary in the industry and incurred in the ordinary course of business, in
each case, securing Indebtedness under Interest Rate Agreements, Currency
Agreements and forward contracts, options, future contracts, futures options or
similar agreements or arrangements designed solely to protect the Company or any
of its Restricted Subsidiaries from fluctuations in interest rates, currencies
or the price of commodities; (xvii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course
of business in accordance with the past practices of the Company and its
Restricted Subsidiaries prior to the Closing Date; (xviii) Liens securing
Indebtedness permitted to be Incurred pursuant to clause (vii) of the second
paragraph of Section 4.03(a); and (xix) Liens
15
that secure Indebtedness with an aggregate principal amount not in excess of $5
million at any time outstanding.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Physical Securities" has the meaning provided in Section 2.01.
"Plan" means the Plan of Reorganization of the Company filed on
September 4, 2002 (as amended and supplemented) with the U.S. Bankruptcy Court
for the Southern District of New York (the "Bankruptcy Court") in the Company's
proceeding under Chapter 11 of the U.S. Bankruptcy Code (Case No. 02-12882
(REG)), which Plan was confirmed by the Bankruptcy Court on December 11, 2002.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"principal" of a debt security, including the Securities, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Purchased Shares" has the meaning set forth in Section 3.06(e).
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which such Security is to be redeemed pursuant to this
Indenture.
"Registered Securities" means Securities that are registered for resale
pursuant to an effective a registration statement on an appropriate form under
the Securities Act (or any similar rule that may be adopted by the Commission).
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of _________________, among the Company and the Affiliated
Holders.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
16
"Regular Record Date" for the interest payable on any Interest Payment
Date means the ____ 1 or ________ 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, and any trust officer or assistant trust officer employed
in the conduct of the Trustee's corporate trust business, or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Security" a Security authenticated and issued hereunder to
an Affiliated Holder, including any Security issued in exchange therefor or in
lieu thereof; provided that the term "Restricted Security" shall not include any
Securities as to which restrictions have been terminated in accordance with
Section 2.08(c).
"Restricted Subsidiary" means (i) the Guarantor and (ii) each other
Subsidiary of the Company that is not an Unrestricted Subsidiary.
"Restrictive Legend" means the legend initially set forth on the
Restricted Securities in the form set forth in Section 2.02(a).
"Rights" has the meaning provided for in Section 3.06(d).
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Securities" shall
include any Registered Securities. For purposes of this Indenture, all
Securities and Registered Securities shall vote together as one series of
Securities under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Security Guarantee" means the full and unconditional Guarantee of the
Securities by the Guarantor, as set forth in Article Eleven.
"Security Register" has the meaning provided in Section 2.04.
"Series __ Notes" means the Company's Series __ 6% Senior Guaranteed
Notes due 2011.
"Series __ Notes Indenture" means the indenture relating to the Series
__ Notes, as originally executed or as it may be amended or supplemented from
time to time by one or more indentures supplemental to such indenture entered
into pursuant to the applicable provisions thereof.
17
"Shelf Registration Statement" means the Shelf Registration Statement
as defined and described in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the consolidated financial statements of the Company for the fiscal
year most recently filed pursuant to Section 4.18.
"S&P" means Standard & Poor's Ratings Services and its successors.
"Stated Maturity" means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which Voting Stock representing more
than 50% of the total voting power of the outstanding Voting Stock is owned,
directly or indirectly, by such Person and one or more other Subsidiaries of
such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.07.
"Telecommunications Business" means telecommunications services, value
added telecommunications services, radio paging, mobile telecommunications,
personal telecommunications services, trunking, transport of broadcasting
signals, information technology, Internet services and related and ancillary
services.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within one year of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate of the
18
Company) organized and in existence under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States of America with a rating at the time as of which any investment therein
is made of "P-1" (or higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher) according
to S&P, (v) securities with maturities of six months or less from the date of
acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "AA" by S&P or "Aa"
by ▇▇▇▇▇'▇, and (vi) certificates of deposit maturing not more than one year
after the acquisition thereof by a Restricted Subsidiary and issued by any of
the ten largest banks (based on assets as of the last December 31) organized
under the laws of the country in which the Restricted Subsidiary that acquires
such certificates of deposit is organized, provided that such bank is not under
intervention, receivership or any similar arrangement at the time of the
acquisition of such certificates of deposit.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
"Trade Payables" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services and required to be paid within one year.
"Trading Day" means a day on which the principal national securities
exchange or market on which the Company's Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Company's Common
Stock is not listed or admitted to trading on any national securities exchange
or market, any Business Day.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
(other than the Guarantor) that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the manner provided
below; and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Restricted Subsidiary (including any newly acquired
or newly formed Subsidiary of the Company but other than the Guarantor) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that (A) any
19
Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of the
Subsidiary being so designated shall be deemed an "Incurrence" of such
Indebtedness by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation; (B) either (I) the Subsidiary to be
so designated has total assets of $1,000 or less or (II) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.04; and (C) if applicable, the Incurrence of Indebtedness would be permitted
under this Indenture. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after giving
effect to such designation (x) the Company could Incur $1.00 of additional
Indebtedness under the first paragraph of Section 4.03 and (y) no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions. Notwithstanding anything herein contained to the contrary,
the Guarantor may not be designated as an Unrestricted Subsidiary.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to Final Maturity, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly-Owned" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly-Owned Subsidiaries of such
Person.
Section 1.02. 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 herein have the following meanings:
"indenture securities" means the Securities;
20
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used herein that are defined by the TIA, defined by
TIA reference to another statute or defined by a rule of the Commission and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein", "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(vii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's certificate
of authentication shall be substantially in the form annexed hereto as Exhibit
A. The Securities may have notations, legends or endorsements required by law,
stock exchange agreements to which the Company is subject or usage. The Company
shall approve the form of the Securities and any notation, legend or endorsement
on the Securities. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of the Securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. Each of the Company and the Trustee, by its execution
and delivery of this Indenture, expressly agrees to the terms and provisions of
the Securities applicable to it and to be bound thereby.
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Securities shall be issued in the form of (i) one or more permanent
global Securities in registered form, substantially in the form set forth in
Exhibit A (collectively, the "Global Security"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided, or (ii) permanent certificated Securities
in registered form in substantially the form set forth in Exhibit A (the
"Physical Securities"); provided that only Restricted Securities shall bear the
Restrictive Legend. The aggregate principal amount of the Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
The definitive Securities shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the Officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Restrictive Legends.
(a) Unless and until the transfer restrictions under the
Securities Act in respect of a Restricted Security terminate in accordance with
Section 2.08(c), each such Restricted Security, whether issued in the form of a
Global Security or Physical Security, shall bear the legend set forth below on
the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR
TRANSFERRED OTHER THAN IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND THE RULES AND REGULATIONS THEREUNDER OR AN EXEMPTION
THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
(b) Each Global Security, whether or not a Restricted
Security, shall also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE 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 THE DEPOSITORY TRUST COMPANY OR NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
22
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Subject
to Article Four and applicable law, the aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The
Securities shall be executed by two Officers of the Company. The signature of
these Officers on the Notes may be by facsimile or manual signature in the name
and on behalf of the Company.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee or authenticating agent manually signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Securities in the aggregate
principal amount specified in such Company Order; provided that the Trustee
shall receive an Officers' Certificate and an Opinion of Counsel of the Company
in connection with such authentication of Securities. The Opinion of Counsel
shall be to the effect that:
(a) the form and terms of such Securities have been
established by or pursuant to a Board Resolution of the Company or, if
applicable, an indenture supplemental hereto in conformity with the provisions
of this Indenture;
(b) such supplemental indenture, if any, when executed
and delivered by the Company, the Guarantor and the Trustee, will constitute a
valid and binding obligation of the Company and the Guarantor;
(c) such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company and the Guarantor in accordance with their
terms and will be entitled to the benefits of this Indenture, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equitable principles; and
(d) each of the Company and the Guarantor has been duly
incorporated in, and is a validly existing corporation in good standing under
the laws of, the jurisdiction of its incorporation.
23
(e) Such Company Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in the case of an issuance of Securities
pursuant to Section 2.15, shall certify that such issuance is in compliance with
Article Four.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate
of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1.00 in principal amount and any integral
multiple of $1.00 in excess thereof.
SECTION 2.04. Registrar, Paying and Conversion Agent. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
where Securities may be presented for payment (the "Paying Agent"), an office or
agency where Securities may be presented for conversion (the "Conversion
Agent"), and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served, which
shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Securities and of their transfer,
exchange or conversion (the "Security Register"). The Company may have one or
more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and Conversion Agent and/or agent for service of notices
and demands, the Trustee shall act as such Registrar, Paying Agent and
Conversion Agent and/or agent for service of notices and demands for so long as
such failure shall continue and shall be entitled to compensation therefor
pursuant to Section 7.07. The Company may remove any Agent upon written notice
to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company, any Subsidiary of the Company, or any Affiliate of any of them may
act as Paying Agent, Conversion Agent, Registrar or co-Registrar, and/or agent
for service of notice and demands; provided that neither the Company, a
Subsidiary of the Company nor an Affiliate of any of them shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article Eight.
The Company initially appoints the Trustee as Registrar, Paying Agent,
Conversion Agent, authenticating agent and agent for service of notice and
demands. If, at any time, the
24
Trustee is not the Registrar, the Registrar shall make available to the Trustee
before each Interest Payment Date and at such other times as the Trustee may
reasonably request, the names and addresses of the Holders as they appear in the
Security Register.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
11:00 a.m. New York City time on each due date of the principal, premium, if
any, and interest on any Securities, the Company shall deposit with the Trustee
money in immediately available funds sufficient to pay such principal, premium,
if any, and interest so becoming due. The Company shall require each Paying
Agent, if any, other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium, if any, and
interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities), and that such Paying Agent
shall promptly notify the Trustee in writing of any default by the Company (or
any other obligor on the Securities) in making any such payment. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if any,
or interest on the Securities, segregate and hold in a separate trust fund for
the benefit of the Holders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee in writing of its action or failure to act as
required by this Section 2.05. The Trustee shall arrange with all Paying Agents
for the payment, from funds furnished by the Company to the Trustee pursuant to
this Indenture, of principal and interest on the Securities and of the
compensation of the Paying Agents for their services as such from funds
furnished by the Company to the Trustee.
SECTION 2.06. Transfer and Exchange. The Securities are issuable
only in registered form. A Holder may transfer a Security by written application
to the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
registration of the transfer by the Registrar in the Security Register. Prior to
the registration of any transfer by a Holder as provided herein, the Company,
the Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee shall treat the Person in whose name the Security is registered as the
owner thereof for all purposes whether or not the Security shall be overdue, and
neither the Company, the Guarantor, the Trustee, nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of or beneficial
owner of an interest in a Global Security shall, by acceptance of such Global
Security, be deemed to have agreed that transfers of beneficial interests in
such Global Security may be effected only through a book-entry system maintained
by the Depositary (or its agent), and that ownership of a beneficial interest in
the Security shall be required to be reflected in a book entry. When Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other authorized denominations,
25
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges in accordance with the terms, conditions and
restrictions hereof, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made to any Holder for any registration of transfer or exchange or redemption of
the Securities, but the Company may require payment by the Holder of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or other similar
governmental charge payable upon transfers, exchanges or redemptions pursuant to
Section 2.11, 4.11, 4.12, 9.08 or 10.04).
The Registrar shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 9.03 or Section 9.08 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be
registered in the name of the Depositary for such Global Securities or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) as applicable, bear legends as set forth in Section
2.02; provided, however, that Global Securities bearing the legend required
under Section 2.02(a) hereof shall be certificated and held separately from
Global Securities not containing such legend.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under any
Global Security, and the Depositary may be treated by the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Security.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the applicable rules and
procedures of the Depositary and the provisions of Section 2.08. In addition,
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Security and a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has
26
occurred and is continuing and the Registrar has received a request to the
foregoing effect from the Depositary.
(c) In connection with any transfer pursuant to paragraph
(b) of this Section 2.07 of a portion of the beneficial interests in a Global
Security to beneficial owners who are required to hold Physical Securities, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to paragraph (b) of this Section 2.07,
the Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Global Security an equal aggregate principal
amount of Physical Securities of authorized denominations.
(e) Any Physical Security delivered to an Affiliated
Holder in exchange for an interest in the Global Security pursuant to paragraph
(b) or (c) of this Section 2.07 shall, except as otherwise provided by paragraph
(a) or (c) of Section 2.08, bear the legend regarding transfer restrictions
applicable to the Physical Security set forth in Section 2.02.
(f) The registered holder of a Global Security may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.08. Special Transfer Provisions Applicable to Restricted
Securities. Unless and until a Restricted Security ceases to be a Restricted
Security as provided under Section 2.08(c), transfers of such Restricted
Security shall only be permitted as specified below:
(a) Restrictive Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Restrictive Legend, the Registrar
shall deliver Securities that do not bear the Restrictive Legend. Upon the
transfer, exchange or replacement of Restricted Securities, the Registrar shall
deliver only Securities that bear the Restrictive Legend unless (i) the
Restrictive Legend is no longer required by Section 2.02, (ii) such restrictions
on transfer shall be terminated in accordance with paragraph (c) of this Section
2.08 or (iii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(b) General. By its acceptance of any Restricted
Security, each Holder of, or beneficial owner of an interest in, such Restricted
Security acknowledges the restrictions on transfer of such Restricted Security
set forth in this Indenture and in the Restrictive Legend and agrees that it
will transfer such Restricted Security only as provided in this Indenture. The
27
Registrar shall not register a transfer of any Restricted Security unless such
transfer complies with the restrictions on transfer of such Restricted Security
set forth in this Indenture. In connection with any transfer of Restricted
Securities, each such Holder or beneficial owner agrees by its acceptance of
Restricted Securities to furnish to the Registrar and the Company such
certifications, legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
(c) Termination of Restrictions on Transfer. The
restrictions imposed by this Section 2.08 and Section 2.02 upon the
transferability of any particular Restricted Security shall cease and terminate
when such Restricted Security has been sold pursuant to an effective
Registration Statement or transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), or is eligible to be
transferred pursuant to paragraph (k) of Rule 144, and thereupon the Company
shall deliver to the Trustee an Officer's Certificate to such effect. Any
Restricted Security as to which the Company has delivered to the Trustee an
Officers' Certificate that such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such
Restricted Security for exchange to the Registrar in accordance with the
provisions of this Section 2.08, be exchanged for a new Security, of like tenor
and aggregate principal amount, which shall not bear the restrictive legends
required by Section 2.02. The Company shall inform the Trustee in writing of the
effective date of any Registration Statement registering the Securities under
the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
Registration Statement. As used in the preceding two paragraphs of this Section
2.08, the term "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
(d) Securities Law Compliance. Neither the Trustee nor
any of its agents shall (i) have any duty to monitor compliance with or with
respect to any federal or state or other securities or tax laws or (ii) have any
duty to obtain documentation on any transfers or exchanges other than as
specifically required hereunder.
(e) Record Retention. The Registrar shall retain copies
of all letters, notices and other written communications received pursuant to
Section 2.07 or this Section 2.08. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.
SECTION 2.09. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding; provided that the
requirements of the second paragraph of Section 2.10 are met. If required by the
Trustee or the Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the
28
Trustee and the Company to protect the Company, the Trustee or any Agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge such Holder for its expenses and the expenses of the Trustee in replacing
a Security. In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, the Company in its
discretion may pay the principal of, premium, if any, and interest accrued on
such Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described
in this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay the principal of,
premium, if any, and interest accrued on Securities payable on that date, then
on and after that date such Securities cease to be outstanding and interest on
them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its Affiliates holds such Security, provided that, in determining whether the
Holders of the requisite principal amount of the outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that the
Trustee knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
SECTION 2.11. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more
29
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall be entitled to the same benefits under this Indenture
as definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee for cancellation any Securities previously
authenticated hereunder that the Company has not issued and sold. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation and shall dispose of
them in accordance with its normal procedure. The Company shall not issue new
Securities to replace Securities it has paid in full or delivered to the Trustee
for cancellation.
SECTION 2.13. CUSIP, CINS and ISIN Numbers. The Company in issuing
the Securities may use "CUSIP", "CINS", "ISIN" or other identification numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP numbers,
CINS numbers, ISIN numbers or other identification numbers, as the case may be,
in notices of redemption or exchange as a convenience to Holders; provided that
any such notice shall state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption, conversion or exchange and that reliance may be placed
only on the other identification numbers printed on the Securities; provided
further, that failure to use "CUSIP", "CINS", "ISIN" or other identification
numbers in any notice of redemption, conversion or exchange shall not effect the
validity or sufficiency of such notice.
SECTION 2.14. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect to
the payment of any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid.
SECTION 2.15. Issuance of Additional Securities. The Company may
not issue additional Securities under this Indenture.
ARTICLE THREE
CONVERSION
SECTION 3.01. Conversion Privilege. Subject to the further
provisions of this Section 3.01, a Holder of a Security may convert such
Security at any time after the date hereof (but if such Security is called for
redemption pursuant to Article Nine, then only to and
30
including but not after the close of business on the fifth Business Day
preceding the Redemption Date, provided that no default by the Company in the
payment of the Redemption Price shall have occurred and be continuing on the
Redemption Date in which case such right of conversion shall be reinstated), at
the Conversion Price (as hereinafter defined) then in effect into shares of the
Company's Common Stock; provided that, if the Holder of a Security tenders such
Security pursuant to an Offer to Purchase made as a result of a Change in
Control, such Security may only be converted if such Holder properly withdraws
its election to participate in such Offer to Purchase prior to consummation of
such Offer to Purchase. The number of shares of the Company's Common Stock
issuable upon conversion of a Security shall be determined by dividing the
principal amount of the Security or portion thereof surrendered for conversion
by the Conversion Price in effect on the Conversion Date. Subject to adjustment
or voluntary reduction as provided in this Article 3, the "Conversion Price"
shall be calculated as follows:
Second Anniversary
Sixth Month First 18th Month of the Closing
Anniversary Anniversary of Anniversary Date and
of the the Closing of the thereafter until
Closing Date Closing Date Date Closing Date Final Maturity
--------------------------------- -------------- -------------- --------------- -------------- -------------------
Conversion Price $____ $____ $____ $____ $____
In the event that the Conversion Date shall be a date between any of
the dates specified in the table above (but prior to the second anniversary of
the Closing Date), the Conversion Price shall be calculated on the basis of the
decrease in the Conversion Price between such dates based a period of 180 days.
A Holder may convert a portion of a Security equal to $1.00 or any
integral multiple thereof. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of a Security.
A Holder of Securities is not entitled to any rights of a holder of the
Company's Common Stock until such Holder has converted its Securities to the
Company's Common Stock, and only to the extent such Securities have been
converted into the Company's Common Stock pursuant to this Article 3.
SECTION 3.02. Conversion Procedure. To convert a Security, a Holder
must (a) complete and manually sign the conversion notice on the back of the
Security (or complete and manually sign a facsimile of such notice) and deliver
such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by the Registrar or the Conversion Agent, (d) have satisfied any
necessary filing requirements under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), in respect of its acquisition of the
shares of Common Stock upon such conversion and the waiting period under such
HSR Act shall have expired or been terminated without objection to such
acquisition, (e) have received any other necessary regulatory consents to its
acquisition of the shares of Common Stock upon such conversion and (f) pay any
transfer or similar tax if required pursuant to Section 3.04 hereof. The date on
which the Holder satisfies
31
all of those requirements is the "Conversion Date." The notice of conversion
shall state that the Holder has satisfied or will have satisfied prior to the
issuance of shares of Common Stock upon conversion of such principal amount, and
any accrued and unpaid interest thereon, any and all legal or regulatory
requirements for conversion, including compliance with the Securities Act, the
Exchange Act and the HSR Act. The Company shall use its reasonable best efforts
in cooperating in a timely manner with such Holder to obtain such legal or
regulatory approvals to the extent its cooperation is necessary.
As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through the Conversion Agent a certificate for the number
of whole shares of the Company's Common Stock issuable upon the conversion,
payment for accrued and unpaid interest on such Security, and cash in lieu of
any fractional shares pursuant to Section 3.03.
The Person in whose name the certificate is registered shall be deemed
to be a stockholder of record on and after the Conversion Date, as the case may
be; provided that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person
or Persons entitled to receive the shares of the Company's Common Stock upon
such conversion as the record holder or holders of such shares of the Company's
Common Stock on such date, but such surrender shall be effective to constitute
the Person or Persons entitled to receive such shares of the Company's Common
Stock as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
and provided, further, that such conversion shall be at the Conversion Price in
effect on the Conversion Date as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such Person shall no longer be a
Holder of such Security.
If any Holder surrenders a Security for conversion after the close of
business on the Regular Record Date for the payment of an installment of
interest and before the close of business on the related Interest Payment Date,
the Company shall pay accrued interest, if any, through the Conversion Date to
the Holder of such Security on such Regular Record Date. On conversion of a
Security, that portion of accrued original issue discount attributable to the
period from the Closing Date to the Conversion Date with respect to the
converted Security shall not be canceled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through the delivery of
shares of the Company's Common Stock (together with the cash payment, if any, in
lieu of fractional shares) in exchange for the Security being converted.
If a Holder converts more than one Security at the same time, the
number of shares of the Company's Common Stock issuable upon the conversion
shall be based on the aggregate Claimed Amount of Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security equal in principal amount to the unconverted portion of the
Security surrendered.
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If the last day on which a Security may be converted is not a Business
Day in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is a
Business Day.
SECTION 3.03. Fractional Shares. The Company shall not issue
fractional shares of its Common Stock upon conversion of Securities. In lieu
thereof, the Company shall pay an amount in cash based upon the Closing Price of
its Common Stock on the Business Day immediately prior to the Conversion Date.
SECTION 3.04. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of its Common Stock upon such conversion. However,
the Holder shall pay any such tax that is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificate representing the shares of the Company's
Common Stock being issued in a name other than the Holder's name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or regulation.
SECTION 3.05. Company to Provide Stock. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as it may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of its Common Stock to permit the conversion of all
outstanding Securities into shares of such Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be free from preemptive
rights and free of any Lien or adverse claim.
The Company shall endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or on
the over-the-counter market or such other market on which such Common Stock is
then listed or quoted.
SECTION 3.06. Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock to the holders of its Common Stock, (ii) make a
distribution in shares of Common Stock to the holders of its Common Stock, (iii)
subdivide or split its outstanding Common Stock into a larger number of shares,
or (iv) combine its outstanding Common Stock into a smaller number of shares,
the Conversion Price in effect immediately prior thereto shall be adjusted so
that the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive that number of shares of Common Stock that it would have
owned or been entitled to receive had such Security been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective as of the close of business on the
33
record date in the case of a dividend in shares or distribution and shall become
effective as of the close of business on the effective date in the case of a
subdivision, split or combination.
(b) In case (i) the Company shall issue rights or
warrants to all or substantially all holders of its Common Stock entitling them
(for a period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) to subscribe for or
purchase shares of its Common Stock (or securities convertible into its Common
Stock) at a price per share less than the Current Market Price per share of the
Company's Common Stock at the record date for the determination of stockholders
entitled to receive such rights or warrants or (ii) the Company shall sell or
issue any Common Stock and the consideration per share of such Common Stock to
be paid upon such sale or issuance is less than the Current Market Price per
share of such Common Stock or the Company shall sell or issue warrants, rights
or other convertible securities to subscribe for or purchase shares of its
Common Stock at a price per share less than the Current Market Price per share
of such Common Stock on the date of such sale or issuance, the Conversion Price
in effect as of the close of business on the record date thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect on the record date by a fraction, the numerator of
which shall be the number of shares of the Company's Common Stock outstanding on
such record date, plus the number of shares which the aggregate offering price
of the total number of shares of the Company's Common Stock so offered (or the
aggregate conversion price of the convertible securities so offered) would
purchase at such Current Market Price, and the denominator of which shall be the
number of shares of the Company's Common Stock outstanding on such record date
plus the number of additional shares of the Company's Common Stock offered (or
into which the convertible securities so offered are convertible). Such
adjustment shall be made successively whenever any such rights, warrants or
convertible securities are issued, and shall become effective as of the close of
business on such record date. If at the end of the period during which such
rights or warrants are exercisable not all rights or warrants shall have been
exercised, the adjusted Conversion Price shall be immediately readjusted to what
it would have been based upon the number of additional shares of the Company's
Common Stock actually issued (or the number of shares of the Company's Common
Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock, cash (excluding (x) any regular
cash dividend on such Common Stock to the extent that the aggregate cash
dividend per share of the Common Stock in any four fiscal quarters does not
exceed the greater of (A) the amount per share of the Common Stock of the cash
dividend on the Common Stock for the preceding four fiscal quarters to the
extent that such dividend for the preceding four fiscal quarters did not require
any adjustment of the Conversion Price pursuant to this Section 3.06(c) (as
adjusted to reflect subdivisions or combinations of the Common Stock), and (B)
3.75% of the arithmetic average of the Closing Prices during the ten Business
Days immediately prior to the date of declaration of such dividend, (y) any
dividend or distribution in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, and (z) any cash
that is distributed as part of a distribution requiring a Conversion Price
adjustment pursuant to Section 3.06(d)), then, in such case, the Conversion
Price shall be decreased so that the same
34
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the record date of such action by
a fraction, the numerator of which shall be the Current Market Price of the
Company's Common Stock on such record date less the amount of cash so
distributed (and not excluded as provided above) applicable to one share of the
Company's Common Stock and the denominator shall be the Current Market Price of
the Company's Common Stock on such record date, such decrease shall be effective
immediately prior to the opening of business on the day following the record
date of such action; provided that, in the event the portion of the cash so
distributed applicable to one share of the Company's Common Stock is equal to or
greater than the Current Market Price of such Common Stock on the record date,
in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion the amount of cash
such Holder would have received had such Holder converted such Security on the
record date. In the event that such dividend or distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not been
declared. If any adjustment is required to be made as set forth in this Section
3.06(c) as a result of a distribution that is a regular dividend, such
adjustment shall be based upon the amount by which such distribution exceeds the
amount of the regular cash dividend permitted to be excluded pursuant hereto. If
an adjustment is required to be made as set forth in this Section 3.06(c) above
as a result of a distribution that is not a regular dividend, such adjustment
shall be based upon the full amount of the distribution.
(d) In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares of Capital Stock of the
Company (other than Common Stock), evidences of indebtedness or other non-cash
assets (including securities of any Person), or shall distribute to all holders
of its Common Stock rights or warrants to subscribe for or purchase any of its
securities (excluding those referred to in Section 3.06(b)) (any of the
foregoing hereinafter referred to as the "Distributed Securities"), then in each
such case the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect as of the
close of business on the record date for such distribution by a fraction, the
numerator of which shall be the Current Market Price of the Company's Common
Stock on the record date mentioned below less the fair market value on such
record date of the portion of the Distributed Securities applicable to one share
of the Company's Common Stock (determined on the basis of the number of shares
of the Company's Common Stock outstanding on the record date), and the
denominator of which shall be the Current Market Price per share of the
Company's Common Stock on such record date. Such adjustment shall become
effective as of the close of business on the record date for the determination
of stockholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event (x) that the Company shall distribute rights or warrants
(other than those referred to in Section 3.06(b)) pro rata to holders of its
Common Stock or (y) the then fair market value of the portion of the
Distributable Securities so distributed applicable to one share of the Company's
Common Stock is equal to or greater than the Current Market Price of such Common
Stock, the Company may, in lieu of making any adjustment pursuant to this
Section 3.06, make proper provision so that each Holder of a Security who
converts such Security (or any portion thereof) after the record date for such
distribution and shall be entitled to receive upon such conversion, in addition
to the shares of the Company's Common Stock issuable upon such conversion (the
"Conversion Shares"), the
35
amount of Distributed Securities such Holder would have received had such Holder
converted such Security on such record date; provided that, with respect to
clause (x), the foregoing provision shall apply only to the extent the
Distributed Securities receivable upon conversion for such Security would be
convertible, exchangeable or exercisable, as applicable, without any loss of
rights or privileges for a period of at least 60 days following conversion of
such Security.
(e) In case a tender or exchange offer made by the
Company or any Subsidiary of the Company for all or any portion of the Company's
Common Stock shall expire and such tender or exchange offer shall involve the
payment by the Company or such Subsidiary of consideration per share of the
Company's Common Stock having a fair market value (as determined by the Board of
Directors of the Company or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive, and
described in a resolution of such Board of Directors or such duly authorized
committee thereof, as the case may be, at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it shall have been amended)) that exceeds the Current Market Price per share of
the Company's Common Stock on the Trading Day next succeeding the Expiration
Time, the Conversion Price shall be reduced so that the same shall equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company's Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company's Common Stock on the Trading Day
next succeeding the Expiration Time, and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of the Company's Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Current
Market Price of the Company's Common Stock on the Trading Day next succeeding
the Expiration Time, such reduction to become effective immediately prior to the
opening of business on the Trading Day next succeeding the Expiration Time. In
the event that the Company or such Subsidiary is obligated to purchase shares of
the Company's Common Stock pursuant to any such tender or exchange offer, but
the Company or such Subsidiary is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price that would then be
effect if such tender or exchange offer had not been made.
(f) In case a tender or exchange offer made by a Person
other than the Company or any Subsidiary of the Company for an amount that
increases the offeror's ownership of the Company's Common Stock to more than 30%
of the Company's Common Stock outstanding shall expire and such tender or
exchange offer shall involve the payment by such Person of consideration per
share of the Company's Common Stock having a fair market value (as determined by
the Board of Directors of the Company or to the extent permitted by applicable
law, a duly authorized committee thereof, whose determination shall be
conclusive, and described in a resolution of such Board of Directors or such
duly authorized committee thereof,
36
as the case may be) at the Expiration Time that exceeds the Current Market Price
of the Company's Common Stock on the Trading Day next succeeding the Expiration
Time, and in which, as of the Expiration Time the Board of Directors of the
Company is not recommending rejection of the offer, the Conversion Price shall
be reduced so that the same shall equal the Conversion Price determined by
multiplying the Conversion Price in effect immediately prior to the Expiration
Time by a fraction of which the numerator shall be the number of shares of the
Company's Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by the Current Market Price of the Company's
Common Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all Purchased Shares and (y) the product of the number of shares of
the Company's Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price of the Company's Common Stock on
the Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time. In the event that such Person is obligated to purchase shares
of the Company's Common Stock pursuant to any such tender or exchange offer, but
such Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price that would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 3.06(f) shall not be made if, as of the
Expiration Time, the offering documents with respect to such offer disclose a
plan or intention to cause the Company to engage in any transaction described in
Article 5.
(g) In any case in which this Section 3.06 shall require
that an adjustment be made on a record date established for purposes of this
Section 3.06, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 3.09) issuing to the Holder of any Security converted after
such record date but prior to the issue date, the shares of the Company's Common
Stock and other capital stock of the Company issuable upon such conversion over
and above the shares of the Company's Common Stock and other capital stock of
the Company issuable upon such conversion only on the basis of the Conversion
Price prior to adjustment; and, in lieu of the shares the issuance of which is
so deferred, the Company shall issue or cause its transfer agents to issue due
bills or other appropriate evidence prepared by the Company of the right to
receive such shares. If any distribution in respect of which an adjustment to
the Conversion Price is required to be made as of the record date or effective
date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then be
in effect if such record date had not been fixed or such effective date had not
occurred.
SECTION 3.07. No Adjustment. No adjustment in the Conversion Price
shall be required unless the adjustment would require an increase or decrease of
at least 1% in the Conversion Price as last adjusted; provided that any
adjustments which by reason of this Section 3.07 are not required to be made
shall be carried forward and taken into account in any subsequent
37
adjustment. All calculations under this Article 3 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
No adjustment need be made for a transaction referred to in Section
3.06 if all Holders are entitled to participate in the transaction on a basis
and with notice to the same extent as holders of the Company's Common Stock
participate in the transaction. The Company shall give notice to the Trustee of
any such determination.
No adjustment need be made for rights to purchase the Company's Common
Stock or issuances of Company's Common Stock pursuant to a Company plan for
reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or a change to
no par value of the Company's Common Stock.
To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
SECTION 3.08. Adjustment for Tax Purposes. The Company shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by Section 3.06, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or Securities or distributions of
Securities convertible into or exchangeable for Capital Stock hereafter made by
the Company to its stockholders shall not be taxable, provided that such
reduction does not have an adverse effect for tax purposes, or otherwise, on
holders of the Securities.
SECTION 3.09. Notice of Adjustment. Whenever the Conversion Price
is adjusted, the Company shall promptly mail to Holders a notice of the
adjustment and file with the Trustee an Officers' Certificate briefly stating
the facts requiring the adjustment, the manner of computing it and the new
Conversion Price.
SECTION 3.10. Notice of Certain Transactions. In the event that:
(a) the Company takes any action that would require an
adjustment in the Conversion Price,
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 3.11 or consolidates or merges with,
or transfers all or substantially all of its property and assets to, another
corporation and stockholders of the Company must approve the transaction, or
(c) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least 15 days before
38
such date. Failure to mail such notice or any defect therein shall not affect
the validity of any transaction referred to in clause (a), (b) or (c) of this
Section 3.10.
SECTION 3.11. Effect of Reclassification, Consolidation, Merger or
Sale, Transfer or Conveyance on Conversion Privilege. If any of the following
shall occur, namely:
(a) any reclassification or change of shares of the
Company's Common Stock issuable upon conversion of the Securities (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination, or any other change
for which an adjustment is provided in Section 3.06);
(b) any consolidation or merger to which the Company is a
party other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a change
in name, or in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination) in,
outstanding shares of the Company's Common Stock; or
(c) any sale, transfer or conveyance of all or
substantially all of the property and assets of the Company to any Person,
then the Company, or such successor or purchasing corporation, as the case may
be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale, transfer or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale,
transfer or conveyance by a holder of the number of shares of the Company's
Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, consolidation, merger, sale, transfer or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article 3. If, in
the case of any such consolidation, merger, sale, transfer or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of the Company's Common Stock include shares of stock or other
securities and property of a corporation other than the successor or purchasing
corporation, as the case may be, in such consolidation, merger, sale, transfer
or conveyance, then such amendment to this Indenture shall also be executed by
such other corporation and shall contain such additional provisions to protect
the interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section 3.11 shall similarly apply to successive consolidations, mergers, sales,
transfer or conveyances.
In the event the Company shall execute an amendment to this Indenture
pursuant to this Section 3.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other Securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, consolidation, merger, sale, transfer
or
39
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with, and (y) an Opinion of Counsel that
all conditions precedent have been complied with.
SECTION 3.12. Trustee's Disclaimer. The Trustee shall have no duty
to determine when an adjustment under this Article 3 should be made, how it
should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers' Certificate, including the Officers'
Certificate with respect thereto that the Company is obligated to file with the
Trustee pursuant to Section 3.09. The Trustee makes no representation as to the
validity or value of any Securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's failure
to comply with any provisions of this Article 3.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 3.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto that the Company is obligated to file with the
Trustee pursuant to Section 3.11.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated
for and sufficient to pay the installment. If the Company or any Subsidiary of
the Company or any Affiliate of any of them, acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve as the
Paying Agent for the Securities.
The Company shall pay interest on overdue principal, premium, if any,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.02. Maintenance of Offices or Agencies. The Company will
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 or any
Affiliate of any of them) where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities 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 offices or agencies. 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
40
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as such
office of the Company in accordance with Section 2.04.
SECTION 4.03. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, Incur any Indebtedness (other than the
Securities and Indebtedness existing on the Closing Date); provided that, if no
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the Incurrence of any such Indebtedness, the Company may Incur
Indebtedness if, after giving effect to the Incurrence of such Indebtedness and
the receipt and application of the proceeds therefrom, the Fixed Charge Coverage
Ratio would be at least 2.0 to 1.0.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness in an aggregate principal amount not to exceed $150 million, or
in the event that the Company or any Restricted Subsidiary incurs any
Indebtedness permitted under clause (vii) of this paragraph, the difference
between $150 million less the amount of any such Indebtedness incurred pursuant
to said clause (vii); provided that in the event that any Restricted Subsidiary
(other than the Guarantor) Incurs any Indebtedness pursuant to this clause (i)
in excess of $25 million in the aggregate at any time outstanding and the
proceeds of such Indebtedness are not used for capital expenditures, then any
such Restricted Subsidiary shall, as a condition precedent to incurring such
Indebtedness, execute and deliver a supplemental indenture to this Indenture
providing for a Guarantee of payment of the Securities by such Person; and
provided further that no more than 25% of the Indebtedness Incurred under this
clause (i) may be used for purposes other than capital expenditures; (ii)
Indebtedness owed (A) to the Company evidenced by a promissory note or (B) to
any Restricted Subsidiary; provided that any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in
exchange for, or the net proceeds of which are used to refinance or refund, then
outstanding Indebtedness (other than Indebtedness Incurred under clause (ii),
(vi), (vii) or (x) of this paragraph) and any refinancings thereof in an amount
not to exceed the amount so refinanced or refunded (plus premiums, accrued
interest, fees and expenses); provided that Indebtedness the proceeds of which
are used to refinance or refund the Securities, the Security Guarantee or
41
Indebtedness that is pari passu with, or subordinated in right of payment to,
the Securities or the Security Guarantee shall only be permitted under this
clause (iii) if (A) in case the Securities or the Security Guarantee are
refinanced in part or the Indebtedness to be refinanced is pari passu with the
Securities or the Security Guarantee, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such new Indebtedness
is outstanding, is expressly made pari passu with, or subordinate in right of
payment to, the remaining Securities or Security Guarantee, as the case may be,
(B) in case the Indebtedness to be refinanced is subordinated in right of
payment to the Securities or the Security Guarantee, such new Indebtedness, by
its terms or by the terms of any agreement or instrument pursuant to which such
new Indebtedness is issued or remains outstanding, is expressly made subordinate
in right of payment to the Securities or the Security Guarantee at least to the
extent that the Indebtedness to be refinanced is subordinated to the Securities
or the Security Guarantee, as the case may be, and (C) such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does not
mature prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded, and the Average Life of such new Indebtedness is at least equal to the
remaining Average Life of the Indebtedness to be refinanced or refunded; and
provided further that in no event may Indebtedness of the Company or the
Guarantor be refinanced by means of any Indebtedness of any Restricted
Subsidiary other than the Guarantor pursuant to this clause (iii); (iv)
Indebtedness (A) in respect of performance, surety or appeal bonds provided in
the ordinary course of business, (B) under Currency Agreements and Interest Rate
Agreements; provided that such agreements (a) are designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in foreign currency
exchange rates or interest rates and (b) do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder; and (C) arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
(other than Guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Company or any Restricted Subsidiary in
connection with such disposition; (v) Indebtedness of the Company, to the extent
the net proceeds thereof are promptly (A) used to purchase Securities and Series
__ Notes tendered in an Offer to Purchase made as a result of a Change in
Control or (B) deposited to defease the Securities (as described below under
Article Eight) and the Series __ Notes (as provided in Article Eight of the
Series __ Notes Indenture); (vi) Guarantees of the Securities and Guarantees of
Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee
of such Indebtedness is permitted by and made in accordance with Section 4.07;
(vii) Indebtedness outstanding at any time in the aggregate principal amount not
to exceed $50 million from official, regional and multilateral development
agencies; (viii) Acquired Indebtedness (I) to the extent Incurred in connection
with an Asset Acquisition in which the consideration paid by the
42
Company or any of its Restricted Subsidiaries consists solely of Capital Stock
(other than Disqualified Stock) of the Company, without any limitations as to
amount or (II) to the extent Incurred in connection with an Asset Acquisition in
which the consideration paid by the Company or any of its Restricted
Subsidiaries consists of cash or other property, so long as the aggregate amount
of such consideration paid by the Company or any of its Restricted Subsidiaries
does not exceed $15 million; (ix) Series __ Notes issued (1) pursuant to the
Plan or (2) to holders of Indebtedness existing as of the Closing Date in
respect of which such holders did not vote affirmatively to accept the Plan so
long as the amount of Series __ Notes issued to any such holder does not exceed
the amount of such Indebtedness that such holder would have been entitled to
receive had it voted affirmatively to accept the Plan; (x) Indebtedness of any
Restricted Subsidiary, to the extent that the Company is the beneficial owner of
such Indebtedness and such Indebtedness is evidenced by a promissory note or
participation certificate issued to the Company by the record holder of such
indebtedness; and (xi) Indebtedness of the Company (in addition to Indebtedness
permitted under clauses (i) through (x) above) in an aggregate principal amount
outstanding at any time not to exceed $100 million, less any amount of such
Indebtedness permanently repaid as provided under Section 4.11; provided that
(i) such Indebtedness is expressly made subordinate in right of payment to the
Securities, the terms of such subordinated Indebtedness expressly provide that
(A) the holders of such Indebtedness shall not be entitled to receive any
payments during such time as a Default or Event of Default has occurred and is
continuing under the Securities or accelerate such Indebtedness until such time
as a declaration of acceleration of the Securities has occurred pursuant to
Section 6.01 hereof and (B) in the event that a declaration of acceleration of
the Securities has been rescinded and annulled pursuant to Section 6.02 hereof,
the event giving rise to the acceleration of such Indebtedness incurred pursuant
to this clause (xi) shall be deemed cured and such acceleration shall be deemed
rescinded and annulled without any further action, and (ii) such Indebtedness
does not mature prior to Final Maturity.
(b) Notwithstanding any other provision of this Section
4.03, the maximum amount of Indebtedness that the Company or a Restricted
Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the result
of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of
Indebtedness under this Section 4.03, (1) Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (2) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.09
shall not be treated as Indebtedness. For purposes of determining compliance
with this Section 4.03, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses, the Company, in its sole discretion, shall classify, and from time to
time may reclassify, such item of Indebtedness and only be required to include
the amount and type of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. The Company will
not, and will not permit any Restricted Subsidiary (including the Guarantor) to,
directly or indirectly, (i) declare or pay any dividend or make any distribution
on or with respect to its Capital Stock held by Persons other than the Company
or any Restricted Subsidiary (other than (x) dividends or distributions payable
solely in shares of its or such Restricted Subsidiary's Capital Stock (other
than Disqualified Stock) or in options, warrants or other rights to acquire
shares of such Capital Stock
43
and (y) pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries; provided that such payments made to Persons other than the Company
or a Restricted Subsidiary shall be included in calculating whether the
conditions of clause (C) of this first paragraph of Section 4.04 have been met),
(ii) purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock of the Company or the Guarantor (including options, warrants or
other rights to acquire such shares of Capital Stock) held by Persons other than
the Company or any of its Wholly-Owned Restricted Subsidiaries, (iii) make any
voluntary or optional principal payment, or voluntary or optional redemption,
repurchase, defeasance, or other acquisition or retirement for value, of
Indebtedness of the Company that is subordinated in right of payment to the
Securities or of the Guarantor that is subordinated to the Security Guarantee or
(iv) make any Investment, other than a Permitted Investment, in any Person (such
payments or any other actions described in clauses (i) through (iv) above being
collectively "Restricted Payments") if, at the time of, and after giving effect
to, the proposed Restricted Payment: (A) a Default or Event of Default shall
have occurred and be continuing, (B) the Company could not Incur at least $1.00
of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate
amount of all Restricted Payments (the amount, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination shall be
evidenced by a Board Resolution) made after the Closing Date shall exceed the
sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income
(or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount
of such loss) (determined by excluding income resulting from transfers of assets
by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued
on a cumulative basis during the period (taken as one accounting period)
beginning on the first day of the fiscal quarter commencing after the Closing
Date and ending on the last day of the last fiscal quarter preceding the
Transaction Date for which reports have been filed with the Commission or
provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash
Proceeds received by the Company after the Closing Date as a capital
contribution or from the issuance and sale of its Capital Stock (other than
Disqualified Stock) to a Person who is not a Subsidiary of the Company,
including an issuance or sale permitted by this Indenture of Indebtedness of the
Company for cash subsequent to the Closing Date upon the conversion of such
Indebtedness into Capital Stock (other than Disqualified Stock) of the Company,
or from the issuance to a Person who is not a Subsidiary of the Company of any
options, warrants or other rights to acquire Capital Stock of the Company (in
each case, exclusive of any convertible indebtedness, Disqualified Stock or any
options, warrants or other rights that are redeemable at the option of the
holder, or are required to be redeemed, prior to Final Maturity), in each case
except to the extent such Net Cash Proceeds are used to Incur Indebtedness
pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3)
an amount equal to the net reduction in Investments made pursuant to this first
paragraph of this Section 4.04 in any Person resulting from payments of interest
on Indebtedness, dividends, repayments of loans or advances, or other transfers
of assets, in each case to the Company or any Restricted Subsidiary or from the
Net Cash Proceeds from the sale of any such Investment (except, in each case, to
the extent any such payment or proceeds are included in the calculation of
Adjusted Consolidated Net Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments"), not to exceed, in each case, the amount of
Investments previously made and treated as Restricted Payments by the Company or
any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
44
The foregoing provision shall not be violated by reason of: (i) the
payment of any dividend within 60 days after the date of declaration thereof if,
at said date of declaration, such payment would comply with the foregoing
paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of payment to
the Securities including premium, if any, and accrued and unpaid interest, with
the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of
the second paragraph of part (a) of Section 4.03; (iii) the repurchase,
redemption or other acquisition of Capital Stock of the Company or any
Restricted Subsidiary (or options, warrants or other rights to acquire such
Capital Stock) in exchange for, or out of the Net Cash Proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock
(other than Disqualified Stock) of the Company (or options, warrants or other
rights to acquire such Capital Stock); provided that the Net Cash Proceeds from
such sale or such capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of the amounts under
clause (2) of the previous paragraph; (iv) the making of any principal payment
or the repurchase, redemption, retirement, defeasance or other acquisition for
value of Indebtedness of the Company that is subordinated in right of payment to
the Securities in exchange for, or out of the Net Cash Proceeds of a capital
contribution or a substantially concurrent offering of, shares of the Capital
Stock (other than Disqualified Stock) of the Company (or options, warrants or
other rights to acquire such Capital Stock); provided, however, that the Net
Cash Proceeds from such sale or such capital contribution (to the extent so used
for such Restricted Payment) shall be excluded from the calculation of the
amounts under clause (2) of the previous paragraph; (v) payments or
distributions, to dissenting stockholders pursuant to applicable law, pursuant
to or in connection with a consolidation, merger or transfer of assets that
complies with Article Five; (vi) Investments in Unrestricted Subsidiaries not to
exceed, at any one time outstanding, $5 million; or (vii) Investments acquired
in exchange for Capital Stock (other than Disqualified Stock) of the Company or
with the Net Cash Proceeds of such Capital Stock; provided that such proceeds
are so applied within 90 days of receipt thereof; provided that the Net Cash
Proceeds from such sale or such capital contribution (to the extent so used for
such Restricted Payment) shall be excluded from the calculation of the amounts
under clause (2) of the previous paragraph; (viii) the payment of cash to (A)
the holders of warrants issued pursuant to the Plan upon exercise of such
warrants and (B) the holders of Securities or the Series __ Notes upon
conversion of the Securities or the Series __ Notes, in each case in lieu of
fractional shares of the Company's Common Stock and (ix) other Restricted
Payments in an aggregate amount not to exceed $10 million; provided that, except
in the case of clause (i), no Default or Event of Default shall have occurred
and be continuing or occur as a consequence of the actions or payments set forth
therein. The value of any Restricted Payment made other than in cash shall be
the fair market value thereof. The amount of any Investment "outstanding" at any
time shall be deemed to be equal to the amount of such Investment on the date
made, less the return of capital to the Company and its Restricted Subsidiaries
with respect to such Investment (up to the amount of such Investment).
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iv) thereof and an Investment referred to in clause (vi) thereof), and
the Net Cash Proceeds from any capital contribution or any issuance of Capital
45
Stock referred to in clauses (iv) and (vii), shall be included in
calculating whether the conditions of clause (C) of the first paragraph of this
Section 4.04 have been met with respect to any subsequent Restricted Payments.
If the proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Securities, or Indebtedness
that is pari passu with the Securities, then the Net Cash Proceeds of such
issuance shall be included in clause (C) of the first paragraph of this Section
4.04 only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of Indebtedness. For purposes of determining
compliance with this Section 4.04, in the event that a Restricted Payment meets
the criteria of more than one of the types of Restricted Payments described in
clauses (i) through (x) of the preceding paragraph, the Company, in its sole
discretion, shall classify such Restricted Payment and only be required to
include the amount and type of such Restricted Payment in one of such clauses.
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary (other than the Guarantor) to (i) pay dividends or
make any other distributions permitted by applicable law on any Capital Stock of
such Restricted Subsidiary owned by the Company or any other Restricted
Subsidiary, (ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, make loans or advances to the Company or any other
Restricted Subsidiary or (iv) transfer any of its property or assets to the
Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date (including the Nortel Financing
Agreements) or any other agreements in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions, refinancings,
renewals or replacements are no less favorable in any material respect to the
Holders than those encumbrances or restrictions that are then in effect and that
are being extended, refinanced, renewed or replaced; (ii) existing under or by
reason of applicable law; (iii) existing with respect to any Person or the
property or assets of such Person acquired by the Company or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred in
contemplation thereof, which encumbrances or restrictions are not applicable to
any Person or the property or assets of any Person other than such Person or the
property or assets of such Person so acquired; (iv) in the case of clause (iv)
of the first paragraph of this Section 4.05, (A) that restrict in a customary
manner the subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising
or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary in
any manner material to the Company or any Restricted Subsidiary (v) with respect
to a Restricted Subsidiary and imposed pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock of, or property and assets of, such Restricted Subsidiary during
the period between
46
the execution of such agreement and the closing thereunder; or (vi) contained in
the terms of any Indebtedness or any agreement pursuant to which such
Indebtedness was issued if (A) the encumbrance or restriction applies only in
the event of a payment default or a default with respect to a financial covenant
contained in such Indebtedness or agreement, (B) the encumbrance or restriction
is not more disadvantageous to the Holders of the Securities than is customary
in comparable financings (as determined in good faith by the Board of Directors)
and (C) the Board of Directors determines that any such encumbrance or
restriction will not adversely affect the Company's financial ability to make
principal or interest payments on the Securities when due. Nothing contained in
this Section 4.05 shall prevent the Company or any Restricted Subsidiary from
(1) creating, incurring, assuming or suffering to exist any Liens otherwise
permitted in Section 4.09 or (2) restricting the sale or other disposition of
property or assets of the Company or any of its Restricted Subsidiaries that
secure, in a manner permitted by this Indenture, Indebtedness of the Company or
any of its Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries. The Company will not sell, and will not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell, any shares of Capital
Stock of a Restricted Subsidiary (including options, warrants or other rights to
purchase shares of such Capital Stock) except (i) to the Company or a
Wholly-Owned Restricted Subsidiary; (ii) issuances of director's qualifying
shares or sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law; (iii) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect to such issuance or sale would have
been permitted to be made under Section 4.04 if made on the date of such
issuance or sale; (iv) the sale of Common Stock of Restricted Subsidiaries that
is not Disqualified Stock, if the proceeds of such issuance or sale are applied
in accordance with clause (A) or (B) of the first paragraph of Section 4.11 or
(v) the transfer of up to 3% of the Common Stock of ConeXia S.A. to employees of
ConeXia S.A. in connection with such employment.
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries.
The Company will not permit any Restricted Subsidiary, directly or indirectly,
to Guarantee any Indebtedness of the Company or the Guarantor ("Guaranteed
Indebtedness"), unless (i) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to this Indenture (x) for a Guarantee (a
"Subsidiary Guarantee") on the terms contained in Article Eleven of this
Indenture, mutatis mutandis, of payment of the Securities by such Restricted
Subsidiary and (y) that, upon such execution and delivery, such Restricted
Subsidiary shall, with respect to such Subsidiary Guarantee, be subject to all
of the obligations of, and deemed to be for all purposes, a Guarantor under this
Indenture (and such Subsidiary Guarantee shall be deemed to be a Security
Guarantee for all purposes under this Indenture) with the same effect as if such
Restricted Subsidiary had been named as a Guarantor in this Indenture, (ii) such
supplemental indenture is accompanied by an opinion of counsel to the effect
that the supplemental indenture has been duly authorized, executed and delivered
by such Restricted Subsidiary, is enforceable against such Restricted Subsidiary
(subject to customary exceptions) and is in compliance in all material respects
with the terms of this Indenture and (iii) such Restricted Subsidiary waives and
will not in any manner whatsoever claim or take the benefit or advantage of, any
rights of
47
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall
not be applicable to any Guarantee of any Restricted Subsidiary that is
permitted as Acquired Indebtedness under Section 4.03 of this Indenture and
existed at the time such Person became a Restricted Subsidiary and was not
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the
Securities or the Security Guarantee, then the Guarantee of such Guaranteed
Indebtedness shall be pari passu with, or subordinated to, the Security
Guarantee or (B) subordinated to the Securities or the Security Guarantee, then
the Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Security Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Securities or the Security Guarantee, as the case may be.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's and each
Restricted Subsidiary's Capital Stock in, or all or substantially all the assets
of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Indenture) or (ii) the release or discharge of the Guarantee
that resulted in the creation of such Subsidiary Guarantee, except a discharge
or release by or as a result of payment under such Guarantee.
SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates. The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any holder (or any Affiliate of such holder) of
5% or more of any class of Capital Stock of the Company or with any Affiliate of
the Company or any Restricted Subsidiary, unless (A) the transaction is upon
fair and reasonable terms no less favorable to the Company or such Restricted
Subsidiary than could be obtained, at the time of such transaction or, if such
transaction is pursuant to a written agreement, at the time of the execution of
the agreement providing therefor, in a comparable arm's-length transaction with
a Person that is not such a holder or an Affiliate; and (b) the Company delivers
to the Trustee (1) with respect to any such transaction or series of related
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 transaction complies with this covenant and that such
transaction has been approved by a majority of the disinterested members of the
Board of Directors; and (2) with respect to any such transaction or series of
related transactions involving aggregate consideration in excess of $20.0
million, an opinion as to the fairness to the Company or such Subsidiary of the
financial terms of such transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
The foregoing limitation does not limit, and shall not apply to (i) any
transaction solely between the Company and any of its Wholly-Owned Restricted
Subsidiaries or solely between Wholly-Owned Restricted Subsidiaries; (ii) the
payment of reasonable and customary regular fees to directors of the Company who
are not employees of the Company; (iii) any payments or
48
other transactions pursuant to any tax-sharing agreement between the Company and
any other Person with which the Company files a consolidated tax return or with
which the Company is part of a consolidated group for tax purposes; or (iv) any
Restricted Payments not prohibited by Section 4.04.
SECTION 4.09. Limitation on Liens. The Company will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on
any of its assets or properties of any character (including, without limitation,
licenses), or any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary, without making effective provision for all of the Securities and all
other amounts due under this Indenture to be directly secured equally and
ratably with (or, if the obligation or liability to be secured by such Lien is
subordinated in right of payment to the Securities, prior to) the obligation or
liability secured by such Lien.
The foregoing limitation does not apply to (i) Liens existing on the
Closing Date; (ii) Liens granted after the Closing Date on any assets or Capital
Stock of the Company or its Restricted Subsidiaries created in favor of the
Holders and the holders of the Series __ Notes on a pro rata basis between the
Securities and the Series __ Notes; (iii) Liens with respect to the assets of a
Restricted Subsidiary granted by such Restricted Subsidiary to the Company or a
Wholly-Owned Restricted Subsidiary to secure Indebtedness owing to the Company
or such other Restricted Subsidiary; (iv) Liens securing Indebtedness that is
Incurred to refinance secured Indebtedness permitted to be Incurred under clause
(iii) of the second paragraph of Section 4.03; provided that such Liens do not
extend to or cover any property or assets of the Company or any Restricted
Subsidiary other than the property or assets securing the Indebtedness being
refinanced; (v) Permitted Liens.
SECTION 4.10. Limitation on Sale-Leaseback Transactions. The Company will not,
and will not permit any Restricted Subsidiary to, enter into any sale-leaseback
transaction involving any of its assets or properties whether now owned or
hereafter acquired, whereby the Company or a Restricted Subsidiary sells or
transfers such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties that the
Company or such Restricted Subsidiary, as the case may be, intends to use for
substantially the same purpose or purposes as the assets or properties sold or
transferred, unless:
(1) the Company or that Restricted Subsidiary, as applicable,
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback
transaction permitted under the caption "Limitation on
Indebtedness" and (b) incurred a Lien to secure such
Indebtedness pursuant to the covenant described above under
the caption "Limitation on Liens;"
(2) the gross cash proceeds of that sale and leaseback transaction
are at least equal to the fair market value (in the case of
gross cash proceeds in excess of $5.0 million as determined in
good faith by the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee), of the
property that is the subject of that sale and leaseback
transaction; and
49
(3) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such
transaction in compliance with, the covenant described above
under the caption "Limitation on Asset Sales."
The foregoing restriction does not apply to any sale-leaseback
transaction if the transaction is solely between the Company and any
Wholly-Owned Restricted Subsidiary or solely between Wholly-Owned Restricted
Subsidiaries.
SECTION 4.11. Limitation on Asset Sales. The Company will not, and will not
permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i) the
consideration received by the Company or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of and (ii) at
least 85% of the consideration received consists of cash or Temporary Cash
Investments. Within 365 days after the receipt of any Net Cash Proceeds from any
Asset Sale, the Company shall or shall cause the relevant Restricted Subsidiary
to (i) (A) apply an amount equal to the Net Cash Proceeds to permanently repay
unsubordinated Indebtedness of the Company, the Guarantor or of any other
Restricted Subsidiary, in each case owing to a Person other than the Company or
any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount
not so applied pursuant to clause (A) (or enter into a definitive agreement
committing to so invest within 12 months after the date of such agreement), in
property or assets (other than current assets) of a nature or type or that are
used in a business (or in a company having property and assets of a nature or
type, or engaged in a business) similar or related to the nature or type of the
property and assets of, or the business of, the Company and its Restricted
Subsidiaries existing on the date of such investment (as determined in good
faith by the Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) and (ii) apply (no later than the end of the
365-day period referred to in clause (i)) the Net Cash Proceeds (to the extent
not applied pursuant to clause (i)) as provided in the following paragraph of
this Section 4.11. The amount of the Net Cash Proceeds required to be applied
(or to be committed to be applied) during such 12-month period as set forth in
clause (i) of the preceding sentence and not applied as so required by the end
of such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 4.11 totals at least $10 million, the Company must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Securities equal to the Excess Proceeds on such date, at a purchase price equal
to 101% of the Claimed Amount (in effect as of the Payment Date) of the
Securities, plus accrued interest (if any) to the Payment Date.
SECTION 4.12. Repurchase of Securities upon a Change of Control. Unless waived
in writing by Holders of two-thirds in principal amount of the Securities then
outstanding, the Company must commence, within 30 days of the occurrence of a
Change of Control, and consummate an Offer to Purchase for all Securities then
outstanding, at a purchase price equal to 101% of the Claimed Amount of the
Securities on the relevant Payment Date (the "Change of Control Redemption
Price"), plus accrued interest (if any) to the Payment Date. Prior to the
mailing of the notice to Holders commencing such Offer to Purchase, but in any
event within 30
50
days following any Change of Control, the Company covenants to (i) repay in full
all indebtedness of the Company that would prohibit the repurchase of the
Securities pursuant to such Offer to Purchase or (ii) obtain any requisite
consents under instruments governing any such indebtedness of the Company to
permit the repurchase of the Securities. The Company shall first comply with the
covenant in the preceding sentence before it shall be required to repurchase
Securities pursuant to this Section 4.12.
SECTION 4.13. Existence. Subject to Articles Four and Five of this Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
material licenses and franchises of the Company and each such Subsidiary;
provided that the Company shall not be required to preserve any such right,
license or franchise, or the existence of any Restricted Subsidiary (other than
itself and each Guarantor), if the maintenance or preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole.
SECTION 4.14. Payment of Taxes and Other Claims. The Company shall pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of the Company or
any such Subsidiary; provided that the Company shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established.
SECTION 4.15. Maintenance of Properties and Insurance. The Company shall cause
all properties used or useful in the conduct of its business or the business of
any of its Restricted Subsidiaries, to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in this Section
4.15 shall prevent the Company or any such Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing on any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
The Company shall provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties,
51
including, but not limited to, products liability insurance and public liability
insurance, 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 for corporations similarly
situated in the industry in which the Company or such Restricted Subsidiary, as
the case may be, is then conducting business.
SECTION 4.16. Notice of Default. In the event that the Company or any Restricted
Subsidiary becomes aware of any Default or Event of Default, the Company or the
Guarantor promptly after it becomes aware thereof, shall give written notice
thereof to the Trustee.
SECTION 4.17. Compliance Certificates. (a) The Company shall deliver to the
Trustee, within 90 days after the end of the Company's fiscal year, an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal year. Such certificates shall contain a
certification from the principal executive officer, principal financial officer
or principal accounting officer of the Company that a review has been conducted
of the activities of the Company and the Restricted Subsidiaries and the
Company's and the Restricted Subsidiaries' performance under this Indenture and
that, to the best knowledge of such officer, the Company has complied with all
conditions and covenants under this Indenture. For purposes of this Section
4.17, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture. If any such officer
knows of such a Default or Event of Default, the certificate shall describe any
such Default or Event of Default and its status.
(b) The Company shall deliver to the Trustee, within 90 days after
the end of its fiscal year, a certificate signed by the Company's independent
certified public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Securities as they
relate to accounting matters, (ii) that they have read the most recent Officers'
Certificate delivered to the Trustee pursuant to paragraph (a) of this Section
4.17 and (iii) whether, in connection with their audit examination, anything
came to their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of Article
Four and Section 5.01 of this Indenture as they pertain to accounting matters
and, if any Default or Event of Default has come to their attention, specifying
the nature and period of existence thereof; provided that such independent
certified public accountants shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards in effect at
the date of such examination.
(c) Within 90 days of the end of each of the Company's fiscal
years, the Company shall deliver to the Trustee a list of all Significant
Subsidiaries. The Trustee shall have no duty with respect to any such list
except to keep it on file and available for inspection by the Holders.
SECTION 4.18. Commission Reports and Reports to Holders. Whether or not the
Company is required to file reports with the Commission, if any Securities are
outstanding, the
52
Company shall file with the Commission all such reports and other information as
it would be required to file with the Commission by Sections 13(a) or 15(d)
under the Exchange Act if it were subject thereto, unless the Company shall be
unable to effect such filing or the Commission shall refuse to accept such
filing. The Company shall supply the Trustee and each Holder of Securities or
shall supply to the Trustee for forwarding to each such Holder, without cost to
such Holder, copies of such reports and other information, whether or not the
Company shall be unable to effect such filing or the Commission refuses to
accept such filing.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws. Each of the Company and
the Guarantor covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company or the Guarantor, as the case may
be, from paying all or any portion of the principal of, premium, if any, or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or that may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) each of the
Company and the 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 if no such law had been enacted.
SECTION 4.20. Additional Amounts. Any payments made by the Guarantor under or
with respect to the Securities pursuant to the Security Guarantee will be made
free and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and other liabilities related thereto)
imposed or levied by or on behalf of the Government of the Republic of Argentina
or of any subdivision, province or territory thereof or by any authority or
agency therein or thereof having power to tax (hereinafter "Taxes"), unless the
Guarantor is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If the Guarantor is required to
withhold or deduct any amount for or on account of Taxes from any payment made
under or with respect to the Security Guarantee, the Guarantor will, on or prior
to the due date for the payment thereof, pay any such Taxes to the appropriate
governmental authority, and will pay such additional amounts ("Additional
Amounts") as may be necessary, so that the net amount received by each Holder of
Securities (including Additional Amounts) after such withholding or deduction
will not be less than the amount such Holder would have received if such Taxes
had not been withheld or deducted; provided that no Additional Amounts will be
payable with respect to a payment made to a Holder (an "Excluded Holder") (i)
who is liable for taxes or duties in respect of such Security by reason of its
having some connection with Argentina other than the mere holding of such
Security or the receipt of principal or interest in respect thereof; (ii) in
respect of any estate, inheritance, gift, sales, transfer or personal property
tax or any similar tax, assessment or governmental charge; or (iii) in respect
of any tax, assessment or other governmental charge which would not have been
imposed but for any failure to comply with certification, information or other
report requirements concerning the nationality, residence or identity of the
Holder or beneficial owner of such Security, if such compliance is required by
statute or by regulation of Argentina or of any political subdivision or taxing
authority thereof or therein as a precondition to relief or exemption from such
tax, assessment or
53
other governmental charge. The Guarantor will, upon written request of any
Holder (other than an Excluded Holder), reimburse such Holder for the amount of
(i) any Taxes so levied or imposed and paid by such Holder as a result of
payments made under or with respect to the Securities and (ii) any Taxes so
levied or imposed with respect to any reimbursement under the foregoing clause
(i), but excluding any such Taxes on such Holder's net income so that the net
amount received by such Holder after such reimbursement will not be less than
the net amount the Holder would have received if Taxes on such reimbursement had
not been imposed.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Guarantor will be obligated
to pay Additional Amounts with respect to such payment, the Guarantor will
deliver to the relevant Trustee and Paying Agents an Officers' Certificate
stating the amount of Taxes required to be deducted or withheld and certifying
that the Guarantor shall make such deduction or withholding and pay such Taxes
and stating the fact that such Additional Amounts will be payable and the
amounts so payable and will set forth such other information necessary to enable
the Trustee to pay such Additional Amounts to Holders on the payment date. The
Trustee and each Paying Agent shall be fully protected in relying upon any
Officers' Certificates furnished pursuant to this paragraph or upon the failure
of the Guarantor to furnish any such Officers' Certificate. Whenever either in
this Indenture or in the Securities there is mentioned, in any context, the
payment of principal (or premium, if any), Redemption Price, interest or any
other amount payable under or with respect to any Security, such mention shall
be deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
SECTION 4.21. Books and Records. The Company shall keep proper books of records
and account in which full, true and correct entries in conformity with GAAP and
all applicable laws shall be made of all dealings and transactions in relation
to its businesses and activities.
ARTICLE FIVE
SUCCESSOR CORPORATION; CLAIMED AMOUNTS
SECTION 5.01. When Company and the Guarantor May Merge, Etc. Each of the Company
and the Guarantor shall not consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person (other than a
consolidation or merger with or into a Wholly-Owned Restricted Subsidiary with a
positive net worth (after giving effect to such consolidation or merger);
provided that, in connection with any such merger or consolidation, no
consideration (other than Common Stock in the surviving Person, the Company or
the Guarantor, as the case may be) shall be issued or distributed to the
stockholders of the Company or the Guarantor, as the case may be) or permit any
Person to merge with or into the Company or the Guarantor unless: (i) the
Company or the Guarantor shall be the continuing Person, or the Person (if other
than the Company or the Guarantor) formed by such consolidation or into which
the Company or the Guarantor, as the case may be, is merged or that acquired or
leased such property and assets of the Company or the Guarantor, as the case may
be, shall be a corporation organized and validly existing under the
54
laws of the United States of America or any jurisdiction thereof (or, in the
case of a consolidation, merger or sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property or assets of the
Guarantor, the country of organization of the Guarantor immediately prior to
such consolidation, merger, sale, conveyance transfer or lease) and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company or the Guarantor, as the case may
be, on all of the Securities and hereunder; (ii) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction on a pro
forma basis, the Company or the Guarantor, as the case may be, or any Person
becoming the successor obligor of the Securities shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the Company or the
Guarantor, as the case may be, immediately prior to such transaction; (iv)
immediately after giving effect to such transaction on a pro forma basis the
Company, or any Person becoming the successor obligor to the Company of the
Securities, as the case may be, could Incur at least $1.00 of Indebtedness under
the first paragraph of Section 4.03; provided that this clause (iv) shall not
apply to a consolidation, merger or sale of all or substantially all of the
assets of the Company if immediately after giving effect to such transaction on
a pro forma basis, the Company or any Person becoming the successor obligor of
the Securities shall have Consolidated Net Worth in an amount equal to or
greater than the Consolidated Net Worth of the Company immediately prior to such
transaction and such transaction shall have been approved by the affirmative
vote of two-thirds of the Company's Board of Directors; and (v) the Company or
the Guarantor, as the case may be, delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to demonstrate compliance
with clauses (iii) and (iv) above) and Opinion of Counsel, in each case stating
that such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for
herein relating to such transaction have been complied with; provided that
clauses (iii) and (iv) above do not apply if, in the good faith determination of
the Board of Directors of the Company, whose determination shall be evidenced by
a Board Resolution, the principal purpose of such transaction is to change the
state of incorporation of the Company; and provided further that any such
transaction shall not have as one of its purposes the evasion of the foregoing
limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger, or any
sale, conveyance, transfer or other disposition of all or substantially all of
the property and assets of the Company or the Guarantor in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company or the Guarantor is merged or to which
such sale, conveyance, transfer or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, under this Indenture with the same effect
as if such successor Person had been named as the Company or the Guarantor, as
the case may be, herein; provided that the Company or the Guarantor, as the case
may be, shall not be released from its obligations to pay the principal of,
premium, if any, or interest on the Securities in the case of a lease of all or
substantially all of its property and assets.
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SECTION 5.03. Definition of Claimed Amount. For purposes of this Indenture, the
"Claimed Amount" corresponding to any applicable date shall be the applicable
Claimed Amount specified in the following table:
Second Anniversary
Sixth Month First 18th Month of the Closing
Anniversary Anniversary of Anniversary Date and
of the the Closing of the thereafter until
Closing Date Closing Date Date Closing Date Final Maturity
--------------------------------- ------------ ------------ -------------- ------------ ------------------
Claimed Amount
(as % of face principal amount of
the Security) 88.85% 91.51% 94.26% 97.09% 100.00%
In the event that a determination of the Claimed Amount is to be made
for a day between any of the dates specified in the table above (but prior to
the second anniversary of the Closing Date), the Claimed Amount shall be
calculated on the basis of the increase in the Claimed Amount between such dates
based a period of 180 days.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Any of the following events shall constitute an
Event of Default:
(a) default in the payment of principal of (or premium, if any, on) any
Security, including the Change of Control Redemption Price, when the same
becomes due and payable at maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Security when the same
becomes due and payable, and such default continues for a period of 30 days;
(c) the Company or the Guarantor defaults in the performance of or
breaches any other covenant or agreement in this Indenture, the Registration
Rights Agreement or under the Securities and such default or breach continues
for a period of 30 consecutive days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Securities;
(d) there occurs with respect to any issue or issues of Indebtedness of
the Company, the Guarantor or any Significant Subsidiary having an outstanding
principal amount of $5 million or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (I) an event of default that has caused the holder thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has not been
rescinded or annulled within 30 days of such acceleration and/or (II) the
failure to make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been
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made, waived or extended within 30 days of such payment default; provided that
any such event of default or failure to make a payment, in each case, with
respect to any Indebtedness existing as of the Closing Date in respect of which
the holders thereof did not vote affirmatively to accept the Plan, shall not be
deemed to be an Event of Default;
(e) any final judgment or order (not covered by insurance) for the
payment of money in excess of $5 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company, the Guarantor or any Significant Subsidiary and shall not be paid or
discharged, and either (A) an enforcement proceeding shall have been commenced
by a creditor upon such judgment or order or (B) there shall be any period of 30
consecutive days following entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and not paid
or discharged against all such Persons to exceed $5 million during which a stay
of enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided that the occurrence of any such
actions that relate to or arise out of any Indebtedness existing as of the
Closing Date in respect of which the holders thereof did not vote affirmatively
to accept the Plan shall not be deemed to be an Event of Default;
(f) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company, the Guarantor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company, the Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, the Guarantor or
any Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company, the Guarantor or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 30
consecutive days; provided that the issuance of any such decree or order with
respect to the Guarantor or any Significant Subsidiary (the entry of which was
not consented to by the Company, the Guarantor or any Significant Subsidiary) at
the request of the holder of any Indebtedness existing as of the Closing Date in
respect of which such holder did not vote affirmatively to accept the Plan shall
not be deemed to be an Event of Default;
(g) the Company, the Guarantor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company, the
Guarantor or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company, the Guarantor or any Significant Subsidiary
or (C) effects any general assignment for the benefit of creditors; provided
that the occurrence of any such event with respect to the Guarantor, in each
case between the Closing Date and _______, 2004, shall not be deemed to be an
Event of Default;
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(h) the Security Guarantee or any Subsidiary Guarantee by a Restricted
Subsidiary shall cease to be, or shall be asserted in writing by the Company,
the Guarantor or such Restricted Subsidiary not to be, in full force and effect
or enforceable in accordance with its terms.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event of
Default specified in clause (f) or (g) of Section 6.01 that occurs with respect
to the Company) occurs and is continuing under this Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Securities,
then outstanding, by written notice to the Company (and to the Trustee if such
notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the principal of, premium, if any, and accrued interest
on the Securities to be immediately due and payable. Upon a declaration of
acceleration, such principal of (which shall be deemed to equal the then
applicable Claimed Amount), premium, if any, and accrued interest shall be
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (d) of Section 6.01 has occurred
and is continuing, such declaration of acceleration shall be automatically
rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (d) of Section 6.01 shall be remedied or cured by the
Company, the Guarantor or the relevant Significant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto, and no other Defaults under this Indenture
have occurred and are continuing after giving pro forma effect to such remedy,
cure or waiver. If an Event of Default specified in clause (f) or (g) of Section
6.01 occurs with respect to the Company, the principal (which shall be deemed to
equal the then applicable Claimed Amount) of, premium, if any, and accrued
interest on the Securities then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Securities, by written notice to the Company and to the Trustee, may
waive all past Defaults and rescind and annul a declaration of acceleration and
its consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on all Securities, (iii) the
principal (which shall be deemed to equal the then applicable Claimed Amount) of
and premium, if any, on any Securities that have become due otherwise than by
such declaration or occurrence of acceleration and interest thereon at the rate
prescribed therefor by such Securities, and (iv) to the extent that payment of
such interest is lawful, interest upon overdue interest, if any, at the rate
prescribed therefor by such Securities, (b) all existing Events of Default,
other than the non-payment of the principal (which shall be deemed to equal the
then applicable Claimed Amount) of, premium, if any, and accrued interest on the
Securities that have become due solely by such declaration of acceleration have
been cured or waived as provided in Section 6.04 and (c) the rescission would
not conflict with any judgment or decree of a court of competent jurisdiction.
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SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal (which shall be deemed to equal the then
applicable Claimed Amount) of, premium, if any, or interest on the Securities or
to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 10.02,
the Holders of at least a majority in principal amount of the outstanding
Securities, by notice to the Trustee, may waive all existing Defaults and Events
of Default and its consequences, except a Default in the payment of principal
of, premium, if any, or interest on any Security as specified in clause (a) or
(b) of Section 6.01 or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Security affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a majority in
aggregate principal amount of the outstanding Securities may, subject to Section
7.02(iv), direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee in personal
liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders of Securities not joining in the giving of
such direction and may take any other action it deems proper that is not
inconsistent with any direction received from Holders of Securities pursuant to
this Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not pursue any remedy with
respect to this Indenture or the Securities unless:
(i) the Holder gives the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liabilities or expenses which may
be incurred in compliance with such request;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the written request and the offer of indemnity; and
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(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities do not give the Trustee
a direction that is inconsistent with the request.
For purposes of Section 6.05 and this Section 6.06, the Trustee shall
comply with TIA Section 316(a) in making any determination of whether the
Holders of the required aggregate principal amount of outstanding Securities
have concurred in any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders with respect to this Indenture or the
Securities or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive
payment of the principal of, premium, if any, or interest on such Security, or
to bring suit for the enforcement of any such payment, on or after the due date
expressed in such Security, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in payment of
principal, premium or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor of the
Securities for the whole amount of principal, premium, if any, and accrued
interest remaining unpaid, together with interest on overdue principal, premium,
if any, and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate specified in the
Securities, and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may 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 any other amounts due the Trustee under Section 7.07) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor of the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon redemption, conversion or exchange of the
Securities or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf
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of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to the Holders for amounts then due and unpaid for
principal (which shall be deemed to equal the then applicable Claimed
Amount) of, premium, if any, and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (which shall
be deemed to equal the then applicable Claimed Amount), premium, if
any, and interest, respectively; and
Third: to the Company or any other obligors of the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court may require any party litigant
in such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by Holders of more than 10% in principal amount of the outstanding Securities.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as if no such proceeding had
been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in Section 2.09, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The
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assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE AND AGENTS
SECTION 7.01. General. The duties and responsibilities of the Trustee shall be
as provided by the TIA and as set forth herein. Whether or not herein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights. Subject to TIA Sections 315(a) through (d):
(i) the Trustee and each Agent may conclusively rely, and shall be
protected in acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee and each Agent need not investigate any fact or
matter stated in the document and may in good faith conclusively rely as to the
truth of the statements and the correctness of the opinions therein;
(ii) before the Trustee or any Agent acts or refrains from acting,
it may consult with counsel and require an Officers' Certificate or an Opinion
of Counsel or both. The Trustee and each Agent shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate,
opinion and/or an accountants' certificate;
(iii) the Trustee and each Agent may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care;
(iv) the Trustee and each Agent shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee and such Agent security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(v) the Trustee and each Agent shall not be liable for any action
it takes or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to take in
accordance with the direction of the Holders of a
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majority in principal amount of the outstanding Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture; provided that the Trustee's or such Agent's conduct, as applicable,
does not constitute bad faith;
(vi) whenever in the administration of this Indenture the Trustee
or any Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee or such
Agent (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company or the Guarantor
personally or by agent or attorney; and
(viii) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, the Guarantor or their Affiliates with the same
rights it would have if it were not the Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no representation as
to the validity or adequacy of this Indenture or the Securities, (ii) shall not
be accountable for the Company's use or application of the proceeds from the
Securities and (iii) shall not be responsible for any statement in the
Securities other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to an officer
assigned to administer corporate trust matters of the Trustee, the Trustee shall
mail to each Holder in the manner and to the extent provided in TIA Section
313(c) notice of the Default or Event of Default within 45 days after it occurs,
unless such Default or Event of Default has been cured or waived; provided that,
except in the case of a default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders.
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SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each May 15,
beginning with May 15, 2003, the Trustee shall mail to each Holder as provided
in TIA Section 313(c) a brief report that complies with TIA Section 313(a) dated
as of such May 15, if required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company and the Guarantor, jointly
and severally, shall pay to the Trustee from time to time such compensation as
shall be agreed upon in writing for its services. The compensation of the
Trustee shall not be limited by any law on compensation of a trustee of an
express trust. The Company and the Guarantor, jointly and severally, shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
(including costs of collection) and advances incurred or made by the Trustee.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company and the Guarantor, jointly and severally, shall indemnify
the Trustee for, and hold it harmless against, any loss or liability or expense
incurred by it without negligence or bad faith on its part in connection with
the acceptance or administration of this Indenture and its duties under this
Indenture and the Securities, including, without limitation, the costs and
expenses of investigating or defending itself against any claim or liability and
of complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties under
this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on,
particular Securities.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clause (f) or (g) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the Trustee
and appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the consent of the Company. The Company may at any time
remove the Trustee, by Company Order given at least 30 days prior to the date of
the proposed removal if: (i) the Trustee is no longer eligible under Section
7.10; (ii) the
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Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
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 outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, but only provided all sums owing to the
Trustee hereunder have been paid and subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
If the Trustee is no longer eligible under Section 7.10 or shall fail
to comply with TIA Section 310(b), any Holder who satisfies the requirements of
TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue indefinitely
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee or any Agent
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee or
Agent with the same effect as if the successor Trustee or Agent had been named
as the Trustee or Agent herein, provided such corporation shall be otherwise
qualified and eligible under this Article.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition.
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SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
SECTION 7.12. Withholding Taxes. The Trustee, as agent for the Company, shall
exclude and withhold from each payment of principal and interest and other
amounts due hereunder or under the Securities any and all withholding taxes
applicable thereto as required by the federal law of the United States or the
law of the State of New York or any political subdivision thereof ("U.S.
Taxes"). The Trustee agrees to act as such withholding agent and, in connection
therewith, whenever any present or future U.S. Taxes or similar charges are
required to be withheld with respect to any amounts payable in respect of the
Securities, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the holders of the Securities, that it
will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to each
holder of a Security appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such holders may
reasonably request from time to time.
SECTION 7.13. Beneficial Ownership Certificate. At the end of the second and
fourth quarters of each calendar year, the Trustee shall mail to each Holder a
certificate in the form of Exhibit B hereto.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as otherwise provided
in this Section 8.01, the Company and the Guarantor each may terminate its
obligations under the Securities and this Indenture if:
(i) (1) all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities that have been replaced or
Securities that are paid pursuant to Section 4.01 or Securities for whose
payment money or securities have theretofore been held in trust and thereafter
repaid to the Company, as provided in Section 8.05) have been delivered to the
Trustee for cancellation; or
(2) (A) the Securities mature within one year or all of them
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption, (B) the Company or the
Guarantor irrevocably deposits in trust with the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds solely for the benefit of the Holders for that purpose, money or
U.S. Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if, any, and
interest on the Securities to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, (C) no Default or Event of Default
with respect to the Securities shall have occurred and be continuing on the date
of such deposit, and
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(D) such deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company or the Guarantor is a party or by which it is bound;
(ii) the Company has paid or caused to be paid all sums payable
under this Indenture by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i)(1), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (i)(2),
the Company's and the Guarantor's obligations in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 4.20, 7.07, 7.08, 8.04, 8.05 and
8.06 and Article Eleven shall survive until the Securities are no longer
outstanding. Thereafter, only the Company's and the Guarantor's obligations in
Sections 7.07, 8.05 and 8.06 shall survive. After any such irrevocable deposit,
the Trustee upon request shall acknowledge in writing the discharge of the
Company's and the Guarantor's obligations under the Securities and this
Indenture except for those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company will be deemed
to have paid and will be discharged from any and all obligations in respect of
the Securities on the 123rd day or, to the extent applicable under clause (B)
below, one year after the date of the deposit referred to in clause (A) of this
Section 8.02, and the provisions of this Indenture will no longer be in effect
with respect to the Securities, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same if:
(A) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10) and conveyed all
right, title and interest for the benefit of the Holders,
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the
Holders as security for payment of the principal of, premium,
if any, and interest, if any, on the Securities, and dedicated
solely to, the benefit of the Holders, in and to (1) money in
an amount, (2) U.S. Government Obligations that, through the
payment of interest, premium, if any, and principal in respect
thereof in accordance with their terms, will provide, not
later than one day before the due date of any payment referred
to in this clause (A), money in an amount or (3) a combination
thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all
federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and accrued interest on the
outstanding Securities at Final Maturity of such principal or
interest; provided that (1) such trustee, if any, shall have
been irrevocably instructed to pay such money or
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the proceeds of such U.S. Government Obligations to the
Trustee, and (2) the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal,
premium, if any, and interest with respect to the Securities;
(B) the Company shall have delivered to the Trustee (i) either (x)
an Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for United States federal
income tax purposes as a result of the Company's exercise of
its option under this Section 8.02 and will be subject to
United States federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such option had not been exercised, which Opinion of
Counsel must be based upon (and accompanied by a copy of) a
ruling of the United States Internal Revenue Service to the
same effect unless there has been a change in applicable
United States federal income tax law after the Closing Date
such that a ruling is no longer required or (y) a ruling
directed to the Trustee received from the United States
Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel; and (ii) an Opinion of
Counsel to the effect that (x) the creation of the defeasance
trust does not violate the Investment Company Act of 1940 and
(y) after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of
any Holder who may be deemed to be an "insider" for purposes
of the United States Bankruptcy Code, after one year following
the deposit), the trust funds will not be subject to the
effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company or the Guarantor under
either such statute, and either (I) the trust funds will no
longer remain the property of the Company or the Guarantor
(and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that
the trust funds remained property of the Company or the
Guarantor (a) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the
extent not paid to the Holders, the Trustee will hold, for the
benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under
such statute), (b) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if
such trust funds are used in such case or proceeding and (c)
no property, rights in property or other interests granted to
the Trustee or the Holders in exchange for, or with respect
to, such trust funds will be subject to any prior rights of
holders of other Indebtedness of the Guarantor, the Company or
any of its Subsidiaries;
(C) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or during the period
ending on the 123rd day (or one year) after the date of such
deposit, and such deposit shall not result in a breach or
violation of, or constitute a default
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under, any other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(D) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to
be applied to such deposit);
(E) the Company has 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
Securities over the other creditors of the Company or any
Guarantor with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or such
Guarantor or others;
(F) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Securities will not
be delisted as a result of such deposit, defeasance and
discharge; and
(G) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to
the defeasance contemplated by this Section 8.02 have been
complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (B)(ii)(y) of this Section 8.02, none of the
Company's or the Guarantor's obligations under this Indenture shall be
discharged. Subsequent to the end of such 123-day (or one-year) period with
respect to this Section 8.02, the Company's and the Guarantor's obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 2.14, 4.01, 4.02,
4.13. 4.19, 4.20, 7.07, this Article Eight and Article Eleven shall survive
unless otherwise terminated or discharged hereunder until the Securities are
paid in full. Thereafter, only the Company's obligations in Sections 7.07, 8.04,
8.05 and 8.06 shall survive.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantor's
obligations under the Securities and this Indenture except for those surviving
obligations in the immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company and the Guarantor
may omit to comply with any term, provision or condition set forth in clauses
(iii) and (iv) of Section 5.01 and Sections 4.03 through 4.12, and clause (c) of
Section 6.01 with respect to clauses (iii) and (iv) of Section 5.01 and clauses
(d), (e) and (h) of Section 6.01 shall be deemed not to be Events of Default, in
each case with respect to the outstanding Securities if:
(i) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10) and conveyed all right, title and interest to the
Trustee for the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust funds in
trust, specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest, if any,
on the Securities, and dedicated solely
69
to, the benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and principal in
respect thereof in accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this clause (i), money in
an amount or (C) a combination thereof in an amount sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, the principal of, premium, if any, and interest
on the outstanding Securities at Final Maturity; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to the payment of such principal, premium, if any,
and interest with respect to the Securities;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Guarantor, the Company or any of its Subsidiaries is a party or by
which it is bound;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(iv) the Company has 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 Securities over the other creditors of the Company
or any Guarantor with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company or such Guarantor or others;
(v) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (B) the Holders have a valid first-priority
security interest in the trust funds, (C) the Holders will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
deposit and the defeasance of the obligations referred to in the first paragraph
of this Section 8.03 and will be subject to United States federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred, and (D) after the
passage of 123 days following the deposit (except, with respect to any trust
funds for the account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following the
deposit), the trust funds will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company or the Guarantor
under either such statute, and either (1) the trust funds will no longer remain
the property of the Company or the Guarantor (and therefore will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court were to
rule under any such law in any case or proceeding that the trust funds remained
the property of the Company or the Guarantor (x) assuming such trust funds
remained in the possession of the Trustee prior to such court ruling
70
to the extent not paid to the Holders, the Trustee will hold, for the benefit of
the Holders, a valid and perfected security interest in such trust funds that is
not avoidable in bankruptcy or otherwise (except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute), (y) the Holders
will be entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or proceeding and (z) no
property, rights in property or other interests granted to the Trustee or the
Holders in exchange for, or with respect to, such trust funds will be subject to
any prior rights of holders of other Indebtedness of the Guarantor, the Company
or any of its Subsidiaries;
(vi) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that such deposit and defeasance will not cause the Securities to
be delisted; and
(vii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.03 have been complied with.
Notwithstanding any discharge or release of any obligations under this
Indenture pursuant to this Section 8.03, the Company's and Guarantor's
obligations in Sections 2.04, 2.05, 2.06, 2.09, 7.07, 8.04, 8.05 and 8.06 shall
survive until such time as the Securities have been paid in full. Thereafter,
the Company's and Guarantor's obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the Trustee
or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Securities and this Indenture to the payment
of principal of, premium, if any, and interest on the Securities; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Anything in this Article Eight to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon the Request by the Company any money or U.S. Government
Obligations held by it as provided in Section 8.02 or Section 8.03 that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent defeasance as set forth in those Sections. The Trustee and
the Paying Agent shall pay to the Company any money held by them for the payment
of principal, premium, if any, or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
payment may cause to be published at the expense of the Company once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then
71
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general creditors
unless an applicable law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Obligations in accordance with Section 8.01, 8.02
or 8.03, as the case may be, by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's and the
Guarantor's obligations under this Indenture and the Securities shall be revived
and reinstated as if no deposit had occurred pursuant to Section 8.01, 8.02 or
8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the
Company or the Guarantor has made any payment of principal of, premium, if any,
or interest on any Securities because of the reinstatement of its obligations,
the Company or the Guarantor, as the case may be, shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent.
SECTION 8.07. Insiders. With respect to the determination of the Persons
constituting beneficial owners of Securities and whether any such Person is an
"insider" for purposes of Sections 8.02(B)(ii)(y) and 8.03(iv)(E), the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate.
ARTICLE NINE
REDEMPTION
SECTION 9.01. Right of Redemption. At any time prior to ___________, 2006, the
Company may redeem up to 35% of the principal amount of the Securities
originally issued with the Net Cash Proceeds of one or more Public Equity
Offerings at any time or from time to time in part, at a Redemption Price of
100% of the Claimed Amount thereof on the Redemption Date, together with accrued
and unpaid interest, if any, thereon; provided that (i) at least 65% of the
principal amount of the Securities remain outstanding after each such redemption
and (ii) notice of such redemption is mailed within 60 days of such issuance. In
addition, the Company may not redeem any of the Series __ Notes unless it makes
a pro rata redemption of the Securities.
SECTION 9.02. Notices to Trustee. If the Company elects to redeem Securities
pursuant to Section 9.01, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section 9.02 in
an Officers' Certificate at least ten days before mailing the notice to Holders
required pursuant to Section 9.04 (unless a shorter period shall be satisfactory
to the Trustee).
SECTION 9.03. Selection of Securities to Be Redeemed. In the case of any partial
redemption, selection of the Securities for redemption will be made by the
Trustee in compliance
72
with the requirements of the principal national securities exchange, if any, on
which the Securities are listed or, if the Securities are not listed on a
national securities exchange, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate; provided that no
Security of $1,000 in principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. Securities in denominations of $1,000
or less in principal amount may only be redeemed in whole. The Trustee may
select for redemption portions (equal to $1.00 in principal amount or any
integral multiple thereof) of Securities that have denominations larger than
$1,000 in principal amount. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company and the Registrar promptly in
writing of the Securities or portions of Securities to be called for redemption.
SECTION 9.04. Notice of Redemption. With respect to any redemption of Securities
pursuant to Section 9.01, at least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by first class
mail to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
(e) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued interest to the Redemption
Date upon surrender of the Securities to the Paying Agent;
(f) that, if any Security is being redeemed in part, the portion of
the principal amount (equal to $1.00 in principal amount or any integral
multiple thereof) of such Security to be redeemed and that, on and after the
Redemption Date, upon surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion thereof will be reissued;
and
(g) that, if any Security contains a CUSIP, CINS, ISIN or other
identification number as provided in Section 2.13, no representation is being
made as to the correctness of the CUSIP, CINS, ISIN or other identification
number either as printed on the Securities or as contained in the notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities.
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At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least ten days before it is
required to mail the notice to Holders required by this Section 9.04, the
Trustee shall give such notice of redemption in the name and at the expense of
the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given.
SECTION 9.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender of any Securities to
the Paying Agent, such Securities shall be paid at the Redemption Price, plus
accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Securities held by Holders to whom such notice was
properly given.
SECTION 9.06. Deposit of Redemption Price. On or prior to 10:00 A.M. on any
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in Section 2.05) money sufficient to pay the Redemption Price of and
accrued interest on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 9.07. Payment of Securities Called for Redemption. If notice of
redemption has been given in the manner provided above, the Securities or
portion of Securities specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Securities at the
Redemption Price and accrued interest to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Securities), such Securities shall cease to accrue interest.
Upon surrender of any Security for redemption in accordance with a notice of
redemption, such Security shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments of interest shall be payable to the Holders
registered as such at the close of business on the relevant Regular Record Date
that is on or prior to the Redemption Date.
SECTION 9.08. Securities Redeemed in Part. Upon surrender of any Security that
is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security equal in principal amount
to the unredeemed portion of such surrendered Security.
SECTION 9.09. Offer to Purchase. Without limiting the obligations of the Company
under this Indenture, in the event that the Company shall make any "Offer to
Purchase" (as defined in
74
the Series __ Notes Indenture) the Series __ Notes, or any portion thereof, the
Company shall also make an Offer to Purchase the Securities on substantially the
same terms and conditions.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders. The Company and the Guarantor, when
authorized by resolutions of their Boards of Directors, and the Trustee may
amend or supplement this Indenture or the Securities without notice to or the
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not adversely affect the
interests of the Holders in any material respect;
(b) to comply with Article Five;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(e) to make any change that, does not materially and adversely affect
the rights of any Holder.
SECTION 10.02. With Consent of Holders. Subject to Sections 6.04 and 6.07 and
without prior notice to the Holders, the Company and the Guarantor, when
authorized by their Boards of Directors (as evidenced by a Board Resolution),
and the Trustee may amend this Indenture and the Securities with the written
consent of the Holders of a majority in principal amount of the Securities then
outstanding, and the Holders of a majority in principal amount of the Securities
then outstanding by written notice to the Trustee may waive future compliance by
the Company or the Guarantor with any provision of this Indenture or the
Securities.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Final Maturity, the Claimed Amount of, or any
installment of interest on, any Security;
(ii) reduce the principal amount of, the Claimed Amount of, or
premium, if any, or interest on, any Security, or adversely affect any right of
repayment at the option of any Holder of any Security;
(iii) change the place or currency of payment of principal of, or
premium, if any, or interest on, any Security;
75
(iv) impair the right to institute suit for the enforcement of any
payment on or after Final Maturity (or, in the case of a redemption, on or after
the Redemption Date) of any Security;
(v) make any change in a Subsidiary Guarantee that materially and
adversely affects the rights of any Holder;
(vi) reduce the above-stated percentage of outstanding Securities
the consent of whose Holders is required for any amendment of this Indenture,
any supplemental indenture, for any waiver of compliance with certain provisions
of this Indenture or for waiver of certain Defaults and their consequences
provided for in this Indenture;
(vii) waive a default in the payment of principal of, premium, if
any, or interest on the Securities;
(viii) release the Guarantor from the Security Guarantee; or
(ix) modify any of the provisions of this Section 10.02, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. 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 or waiver.
SECTION 10.03. Revocation and Effect of Consent. Until an amendment or waiver
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Securities.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding
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paragraph, those Persons who were Holders at such record date (or their duly
designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in any of clauses (i)
through (v) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting
Holder.
SECTION 10.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder to deliver such Security to the Trustee. At the Company's expense the
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 10.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article Nine is authorized or permitted by this Indenture.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights, duties or
immunities of the Trustee under this Indenture or otherwise. The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or waiver
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 10.06. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article Nine shall conform to the requirements of the
TIA as then in effect.
ARTICLE ELEVEN
GUARANTEE OF SECURITIES
SECTION 11.01. Security Guarantee. Subject to the provisions of this Article
Eleven, the Guarantor hereby fully, unconditionally and irrevocably guarantees
to each Holder and to the Trustee on behalf of the Holders: (i) the due and
punctual payment of the principal (which shall be deemed to equal the then
applicable Claimed Amount) of, premium, if any, on and interest on each
Security, when and as the same shall become due and payable, whether, by
acceleration, required repurchase (including by reason of Change of Control),
call for redemption or otherwise, the due and punctual payment of interest on
the overdue principal of and interest, if any, on the Securities, to the extent
lawful (in each case including interest accruing on or after filing of any
petition in bankruptcy or reorganization relating to the Company or the
Guarantor,
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whether or not a claim for post filing interest is allowed in such proceeding),
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 of such Security
and this Indenture and (ii) in the case of any extension of time of payment or
renewal of any Securities 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, at Stated Maturity, by acceleration, required
repurchase (including by reason of Change of Control), call for redemption or
otherwise. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Security or
the debt evidenced thereby and all demands whatsoever, and covenants that this
Security Guarantee will not be discharged as to any such Security except by
payment in full of the principal (which shall be deemed to equal the then
applicable Claimed Amount) thereof and interest thereon and as provided in
Section 8.01 and Section 8.02 (subject to Section 8.06). The Guarantor hereby
also irrevocably waives any right contemplated by Articles 480 (second
paragraph), 481 and 482 of the Argentine Commercial Code as well as any rights
and powers contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020,
2021 (except the right to oppose payment), 2022, 2023, 2024, 2025, 2026, 2028,
2029 (in the same extension as provided in the third paragraph of this Section
11.01), 2043, 2044, 2045, 2046, 2047, 2049 (except in the case of express prior
written waiver issued by the Trustee), and 2050 of the Argentine Civil Code, to
the extent any such rights of defenses would otherwise become applicable or
available to the Guarantor. The obligations of the Guarantor hereunder shall not
be affected by any failure or delay of the Trustee to exercise any right or
remedy under this Indenture, the Securities or this Security Guarantee. The
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of this Article Eleven. In the event of any
declaration of acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purpose of this Article Eleven. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Six, the Trustee shall promptly make a demand for
payment on the Securities under the Security Guarantee provided for in this
Article Eleven.
The Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant portion of the Company's assets, and if the Trustee or the
Holder of any Security is required by any court or otherwise to return to the
Company or the Guarantor, or any custodian, receiver, liquidator, trustee,
sequestrator or other similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security, this Security Guarantee, to the extent theretofore discharged, shall
continue to be effective or be reinstated in full force and effect, as the case
may be, all as if such payment has not been made. The Guarantor further agrees,
to the fullest extent that it may lawfully do so, that, as between it, on the
one hand, and the Holders and the Trustee, on the other hand, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article Six
hereof for the purposes of this Security Guarantee, notwithstanding any
78
stay, injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed hereby.
The 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 its obligations under this
Security Guarantee and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, 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 security on
account of such claim or other rights until such time as the Securities and all
of the Company's other obligations being guaranteed hereby shall have been
indefeasibly paid in full. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the principal of, premium, if any, and
accrued interest on the Securities shall not have been paid in full, such amount
shall be deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Holders, and shall forthwith be paid to the
Trustee for the benefit of the Holders to be credited and applied upon the
principal (which shall be deemed to equal the then applicable Claimed Amount)
of, premium, if any, and accrued interest on the Securities. The Guarantor
acknowledges that it will receive direct and indirect benefits from the issuance
of the Securities pursuant to this Indenture and that the waivers set forth in
this Section 11.01 are knowingly made in contemplation of such benefits.
The Security Guarantee set forth in this Section 11.01 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 11.02. Obligations Unconditional. This Guarantee is absolute,
unconditional and irrevocable irrespective of the genuineness, validity,
regularity, legality or enforceability of the Securities or this Indenture or
the obligations of the Company hereunder or thereunder, the absence of any
action to enforce the same, any merger, consolidation, reorganization,
winding-up or dissolution of the Company, any waiver or consent or other action
by any Holder of the Securities or by the Trustee with respect to any provisions
hereof or thereof, any release or amendment or waiver of any term of any other
guarantee of, or consent to departure from any requirement of, any other
guarantee of all or any of the Securities, the disallowance, under Section 502
of the Bankruptcy Code, of all or any portion of the claims of the Trustee or
any of the Holders for payment of any of the Securities, the obtaining of any
judgment against the Company or any action to enforce the same, the failure of
the Company to pay any fees to the Guarantor, or any other circumstances
whatsoever which might in any manner or to any extent constitute a legal or
equitable discharge or defense available to the Company or to a guarantor or
vary the risk of the Guarantor.
The Guarantee shall be continuing and remain in full force and effect
and be binding upon the Guarantor and its successors and inure to the benefit of
the Trustee and the Holders,
79
until all obligations of the Company with respect to the Securities have been
performed and indefeasiby paid in full, except as otherwise provided in this
Article Eleven.
Subject to Section 11.05, nothing contained in this Article Eleven or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Guarantor and the holders of the Securities, the obligation of
the Guarantor, which is absolute, unconditional and irrevocable, upon failure by
the Company, to pay to the Holders of the Securities the principal of, premium,
if any, and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, without the necessity of action by the
Trustee or any Holder, or is intended to or shall affect the relative rights of
the Holders of the Securities and creditors of the Guarantor, nor shall anything
herein or therein prevent the Holder of any Security or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.
Without limiting the foregoing, nothing contained in this Article
Eleven will restrict the right of the Trustee or the Holders of the Securities
to take any action to declare the Security Guarantee to be due and payable prior
to Final Maturity pursuant to Section 6.02 or to pursue any rights or remedies
hereunder.
SECTION 11.03. Payments by the Guarantor. The Guarantor agrees that any payments
made by it on the Securities will be paid strictly in accordance with the terms
and provisions thereof, regardless of any law, statute, rule, regulation, decree
or order, now or hereafter in effect in any jurisdiction, purporting to affect
in any manner any of the terms or provisions of the Securities, this Indenture
or this Security Guarantee or any of the Guarantor's rights, obligations or
remedies with respect thereto as against the Company, the Trustee of the Holders
or purporting to cause or permit to be invoked any alteration in the time,
amount, manner, place or terms of payment by the Company or the Guarantor under
the Securities.
SECTION 11.04. Notice to Trustee. The Guarantor shall give prompt written notice
to the Trustee of any fact known to the Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Security Guarantee
pursuant to the provisions of this Article Eleven.
SECTION 11.05. This Article Not to Prevent Events of Default. The failure to
make a payment on account of principal of, premium, if any, or interest on the
Securities by reason of any provision of this Article Eleven will not be
construed as preventing the occurrence of an Event of Default.
SECTION 11.06. Net Worth Limitation. Notwithstanding any other provision of this
Indenture or the Securities, the Security Guarantee shall not be enforceable
against the Guarantor in an amount in excess of the net worth of the Guarantor
at the time that determination of such net worth is, under applicable law,
relevant to the enforceability of the Security Guarantee. Such net worth shall
include any claim of the Guarantor against the Company for reimbursement and any
claim against any grantor of a Subsidiary Guarantee for contribution.
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SECTION 11.07. Representation and Warranty of the Guarantor. The Guarantor
hereby represents and warrants that all acts, conditions and things required to
be done and performed and to have happened precedent to the creation and
issuance of this Security Guarantee, to constitute the same valid, binding and
legal obligation of the Guarantor, enforceable against the Guarantor, its
successors and assigns in accordance with its terms, have been done and
performed and have happened in compliance with all applicable laws. The
Guarantor acknowledges that this Security Guarantee is a guarantee of payment
and not of collection. The obligation of the Guarantor under this Security
Guarantee shall constitute a direct, general, irrevocable, unsecured and
unsubordinated obligations of the Guarantor. The Guarantor acknowledges that it
will receive direct and indirect benefits from the issuance of the Securities
pursuant to this Indenture and that the waivers set forth in this Article Eleven
are knowingly made in contemplation of such benefits.
SECTION 11.08. Expenses. The Guarantor agrees to pay or reimburse the Trustee
upon its request for all expenses, disbursements, losses, liabilities and
advances (including the reasonable compensation and expenses and disbursements
of its counsel and of its agents) incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture, including in
particular, but without limitation, those incurred in connection with the
enforcement of any remedies or rights hereunder.
SECTION 11.09. Special Waiver. To the extent that the Guarantor may be entitled
to the benefit of any provision of law requiring the Trustee or any Holder of
the Securities, in any suit, action or proceeding brought in a court in
Argentina or other jurisdiction arising out of or in connection with any of this
Indenture or the Securities, to post security for litigation costs or otherwise
post a performance bond or guaranty ("cautio judication solvi" or "excepcion de
arraigo"), or to take any similar action, the Guarantor hereby waives such
benefit, in each case to the fullest extent now or hereafter permitted under the
laws of Argentina or, as the case may be, such other jurisdiction.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939. Prior to the effectiveness of the
Registration Statement, this Indenture shall incorporate and be governed by the
provisions of the TIA that are required to be part of and to govern indentures
qualified under the TIA. After the effectiveness of the Registration Statement,
this Indenture shall be subject to the provisions of the TIA that are required
to be a part of this Indenture and shall, to the extent applicable, be governed
by such provisions.
81
SECTION 12.02. Notices. Any notice or communication shall be sufficiently given
if in writing and delivered in Person or mailed by first class mail addressed as
follows:
if to the Company:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ 150
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: Chief Executive Officer
if to the Guarantor:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: President
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
The Company, the Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the Security Register by first class mail and
shall be sufficiently given to him if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 12.02, it is duly given, whether or not the
addressee receives it. If, by reason of the suspension of publication or general
circulation of any newspaper or otherwise, it shall be impracticable to publish
notice to the Holders in the manner described herein, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed a sufficient
giving of such notice.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with
82
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 12.03. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company or the Guarantor to the Trustee to take
any action under this Indenture, the Company or the Guarantor shall furnish to
the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 12.04. Statements Required in Certificate or Opinion. Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(i) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(iii) a statement that, in the opinion of each 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
(iv) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided that, with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or
Registrar may make reasonable rules for its functions.
SECTION 12.06. Payment Date Other Than a Business Day. If an Interest Payment
Date, Redemption Date, Payment Date, or Final Maturity of any Security shall not
be a Business Day, then payment of principal of, premium, if any, or interest on
such Security, as the case may be,
83
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Payment Date, Redemption Date, or at Final Maturity of such Security; provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Payment Date, Redemption Date, or Final Maturity, as the case may
be.
SECTION 12.07. Governing Law; Consent to Jurisdiction. This Indenture and the
Securities shall be governed by the laws of the State of New York. Each of the
Company and the Guarantor hereby acknowledges and agrees that it has irrevocably
designated and appointed the Company's registered agent in the State of
Delaware, currently located at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ (together with any successor, the "Process Agent") as its
authorized agent upon whom process may be served in any suit, action or
proceeding arising out of or relating to this Indenture or the Securities or the
transactions contemplated herein or brought under federal or state securities
laws that may be instituted in any federal or state court in the State of New
York, sitting in the city of New York, and acknowledges that the Process Agent
has accepted such designation, (ii) agrees that service of process upon the
Process Agent and written notice of such service to the Company or the
Guarantor, as the case may be (mailed or delivered to the Chief Executive
Officer of the Company at its principal office at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇), shall be deemed in every
respect effective service of process upon the Company or the Guarantor, as the
case may be, in any such suit, action or proceeding and (iii) agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments as may be necessary to continue such designation and appointment
of the Process Agent in full force and effect so long as any of the Securities
shall be outstanding. Each of the Company and the Guarantor hereby agrees to
submit to the nonexclusive jurisdiction of any such federal or state court in
the State of New York in any such suit, action or proceeding arising out of or
relating to this Indenture or the Securities or the transactions contemplated
herein and hereby waives to the fullest extent permitted by law any defense to
the institution or continuance of any such suit, action or proceeding based upon
lack of proper venue, inconvenient forum or similar grounds.
SECTION 12.08. No Adverse Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture, loan or debt agreement of the
Company, the Guarantor or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.09. No Recourse Against Others. No recourse for the payment of the
principal of, premium, if any, or interest on any of the Securities, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company or the Guarantor
contained in this Indenture, or in any of the Securities, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future partner, stockholder, other
equity holder, officer, director, employee or controlling person, as such, of
the Company or the Guarantor or of any successor Person, either directly or
through the Company or the Guarantor or any successor Person, whether by virtue
of any constitution, statute or rule of law, or by the
84
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
SECTION 12.10. Successors. All agreements of the Company and the Guarantor in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.11. Duplicate Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 12.12. Currency Indemnity. U.S. dollars are the sole currency of account
and payment for all sums payable by the Company or the Guarantor under or in
connection with the Securities or the Security Guarantee, including damages. Any
amount received or recovered in a currency other than U.S. dollars (whether as a
result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Company or the Guarantor
or otherwise) by any Holder of a Security in respect of any sum expressed to be
due to it from the Company or the Guarantor shall only constitute a discharge to
the Company or the Guarantor to the extent of the U.S. dollar amount which the
recipient is able to purchase with the amount so received or recovered in that
other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that U.S. dollar amount is less than the U.S. dollar
amount expressed to be due to the recipient under any Security or the Security
Guarantee, the Company and the Guarantor shall indemnify the recipient against
any loss sustained by it as a result. In any event, the Company and the
Guarantor shall indemnify the recipient against the cost of making any such
purchase. For the purposes of this paragraph, it will be sufficient for the
Holder of a Security to certify in a satisfactory manner (indicating the sources
of information used) that it would have suffered a loss had an actual purchase
of U.S. dollars been made with the amount so received in that other currency on
the date of receipt or recovery (or, if a purchase of U.S. dollars on such date
had not been practicable, on the first date on which it would have been
practicable, it being required that the need for a change of date be certified
in the manner mentioned above). These indemnities constitute a separate and
independent obligation from the Company's and the Guarantor's other obligations,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any Holder of a Security and shall
continue in full force and effect despite any other judgment, order, claim or
proof for a liquidated amount in respect of any sum due under any Security.
SECTION 12.13. Currency Translations. For purposes of determining compliance
with this Indenture, the U.S. dollar equivalent of any amounts denominated in a
foreign currency shall be calculated using the noon dollar buying rate in New
York City for wire transfers of such currency as published by the Federal
Reserve Bank of New York on the date of such foreign currency amount is
received, incurred or paid. For other financial reporting purposes, currency
translations will be performed in accordance with GAAP.
85
SECTION 12.14. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
[signature page follows]
86
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
IMPSAT FIBER NETWORKS, INC.
By:
____________________________________
Name:
Title:
By:
____________________________________
Name:
Title:
IMPSAT S.A.
By:
____________________________________
Name:
Title:
THE BANK OF NEW YORK
By:
____________________________________
Name:
Title:
87
EXHIBIT A
[FACE OF NOTE]
IMPSAT FIBER NETWORKS, INC.
Series __ 6% Senior Guaranteed Convertible Note due 2011
[CUSIP ]
[ISIN ]
No. $_________
IMPSAT FIBER NETWORKS, INC., a Delaware corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to __________, or its registered assigns,
the principal sum of ___________ DOLLARS ($_____) on ___________, 2011.
Interest Payment Dates: ____ 15 and ________ 15, commencing ____ 15,
200_.
Regular Record Dates: ____ 1 and ________ 1.
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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
IMPSAT FIBER NETWORKS, INC.
By:
__________________________________
Name:
Title:
By:
__________________________________
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the Series __ 6% Senior Guaranteed Convertible Note due 2011
described in the within-mentioned Indenture.
Date: ______________, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
as Trustee
By:
__________________________________
Authorized Signatory
[REVERSE SIDE OF NOTE]
IMPSAT FIBER NETWORKS, INC.
Series __ 6% Senior Guaranteed Convertible Note due 2011
1. Principal and Interest. The Company will pay the principal of this
Note on ___________, 2011.
The Company promises to pay interest on the principal amount (which
shall be deemed to equal the then applicable Claimed Amount) of this Note on
each Interest Payment Date, as set forth below, at the rate per annum shown
above.
Interest will be payable semiannually (to the holders of record of
the Notes at the close of business on the ____ 15 or ________ 15 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
____ 15, 200_.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from ___________, 200_;
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and (to the extent lawful) interest on overdue installments of interest at
the rate per annum borne by the Notes.
2. Method of Payment. The Company will pay principal as provided above
and interest (except defaulted interest) on the principal amount of the Notes as
provided above on each ____ 15 and ________ 15 to the persons who are Holders
(as reflected in the Security Register at the close of business on the ____ 1
and ________ 1 immediately preceding the Interest Payment Date), in each case,
even if the Note is canceled on registration of transfer or registration of
exchange after such record date; provided that, with respect to the payment of
principal, the Company will not make payment to the Holder unless this Note is
surrendered to a Paying Agent.
The Company will pay principal, premium, if any, and as provided
above, interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay interest by its check payable in such money mailed to a Holder's
registered address (as reflected in the Security Register). If a payment date is
a date other than a Business Day at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
3. Paying Agent, Conversion Agent and Registrar. Initially, the Trustee
will act as authenticating agent, Paying Agent, Conversion Agent and Registrar.
The Company may change
any authenticating agent, Paying Agent, Conversion Agent or Registrar without
notice. The Company, any Subsidiary or any Affiliate of any of them may act as
Paying Agent, Conversion Agent, Registrar or co-Registrar.
4. Indenture; Limitations. The Company issued the Notes under an
Indenture dated as of ___________, 2003 (the "Indenture"), between the Company,
as issuer, IMPSAT S.A., as guarantor (the "Guarantor"), and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise indicated. 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. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured unsubordinated indebtedness of the
Company, will rank pari passu in right of payment with all existing and future
unsecured, unsubordinated indebtedness of the Company and will be senior in
right of payment to all subordinated indebtedness of the Company.
5. Conversion of Note by Holder.
(a) Subject to the provisions of Section 3.01 of the Indenture, a
Holder of a Note may convert such Note at any time after the date hereof (but if
such Note is called for redemption pursuant to Article Nine of the Indenture,
then only to and including but not after the close of business on the fifth
Business Day preceding the Redemption Date (as hereinafter defined), provided
that no default by the Company in the payment of the Redemption Price (as
hereinafter defined) shall have occurred and be continuing on the Redemption
Date in which case such right of conversion shall be reinstated), at the
Conversion Price (as hereinafter defined) then in effect into the Company's
Common Stock. The number of shares of the Company's Common Stock issuable upon
conversion of a Note shall be determined by dividing the principal amount of the
Note or portion thereof surrendered for conversion by the Conversion Price in
effect on the Conversion Date. Subject to adjustment or voluntary reduction as
provided in Article 3 of the Indenture, the "Conversion Price" shall be
calculated as follows:
Second Anniversary
Sixth Month First 18th Month of the Closing
Anniversary Anniversary of Anniversary Date and
of the the Closing of the thereafter until
Closing Date Closing Date Date Closing Date Final Maturity
---------------- ------------ ------------ -------------- ------------ ------------------
Conversion Price $_____ $_____ $_____ $_____ $_____
In the event that the Conversion Date shall be a date between any of
the dates specified in the table above (but prior to the second anniversary of
the Closing Date), the Conversion Price shall be calculated on the basis of the
increase in the Conversion Price between such dates based a period of 180 days.
(b) A Holder of Notes may convert a portion of a Note equal to $1.00 or
any integral multiple thereof; provided that provisions of Article 3 of the
Indenture that apply to conversion of all of a Note also apply to conversion of
a portion of a Note.
(c) A Holder of Notes is not entitled to any rights of a holder of the
Company's Common Stock until such Holder has converted its Notes to the
Company's Common Stock, and only to the extent such Notes are deemed to have
been converted into the Company's Common Stock pursuant to Article 3 of the
Indenture.
(d) In the event that (i) the Company takes any action which would
require an adjustment in the Conversion Price; (ii) the Company consolidates or
merges with, or transfers all or substantially all of its property and assets
to, another corporation and stockholders of the Company must approve the
transaction; or (iii) there is a dissolution or liquidation of the Company, the
Company shall mail to the Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice before such date to the same extent as such notice is mailed to the
stockholders of the Company.
(e) The Conversion Price shall be adjusted from time to time by the
Company as follows:
(i) In case the Company shall (A) pay a dividend in shares of the
Company's Common Stock to the holders of the Company's Common Stock, (B) make a
distribution in shares of the Company's Common Stock to the holders of the
Company's Common Stock, (C) subdivide or split its outstanding Common Stock into
a larger number of shares, or (D) combine its outstanding Common Stock into a
smaller number of shares, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Note thereafter surrendered
for conversion shall be entitled to receive that number of shares of the
Company's Common Stock which it would have owned or been entitled to receive had
such Note been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (i) shall become effective as of the
close of business on the record date in the case of a dividend in shares or
distribution and shall become effective as of the close of business on the
effective date in the case of a subdivision, split or combination.
(ii) In case (A) the Company shall issue rights or warrants to all
or substantially all holders of its the Company's Common Stock entitling them
(for a period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) to subscribe for or
purchase shares of the Company's Common Stock (or securities convertible into
the Company's Common Stock) at a price per share less than the Current Market
Price per share of the Company's Common Stock (as determined in accordance with
subsection (v) of this Section 5(e)) at the record date for the determination of
stockholders entitled to receive such rights or warrants or (B) the Company
shall sell or issue any of the Company's Common Stock and the consideration per
share of the Company's Common Stock to be paid upon such issuance or
subscription is less than the Current Market Price per share of the Company's
Common Stock or the Company shall sell or issue warrants, rights or other
convertible securities to subscribe for or purchase shares of the Company's
Common Stock at a price per share less than the Current Market Price per share
of the Company's Common Stock (each as determined in accordance with subsection
(v) of this Section 5) on the date of such sale
or issuance, the Conversion Price in effect as of the close of business on the
record date thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect on the record date by a
fraction, the numerator of which shall be the number of shares of the Company's
Common Stock outstanding on such record date, plus the number of shares which
the aggregate offering price of the total number of shares of the Company's
Common Stock so offered (or the aggregate conversion price of the Notes so
offered) would purchase at such Current Market Price, and the denominator of
which shall be the number of shares of the Company's Common Stock outstanding on
such record date plus the number of additional shares of the Company's Common
Stock offered (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever any such
rights, warrants or convertible securities are issued, and shall become
effective as of the close of business on such record date. If at the end of the
period during which such rights or warrants are exercisable not all rights or
warrants shall have been exercised, the adjusted Conversion Price shall be
immediately readjusted to what it would have been based upon the number of
additional shares of the Company's Common Stock actually issued (or the number
of shares of the Company's Common Stock issuable upon conversion of Notes
actually issued).
(iii) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock, cash (excluding (x) any regular
cash dividend on the Common Stock to the extent that the aggregate cash dividend
per share of Common Stock in any four fiscal quarters does not exceed the
greater of (A) the amount per share of Common Stock of the cash dividend on the
Common Stock for the preceding four fiscal quarters to the extent that such
dividend for the preceding four fiscal quarters did not require any adjustment
of the Conversion Price pursuant to this Section 5(e)(iii) (as adjusted to
reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the
arithmetic average of the Closing Prices (as set forth in Section 5(e)(v))
during the ten Business Days immediately prior to the date of declaration of
such dividend, (y) any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, and (z) any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section 5(e)(iv)), then, in
such case, the Conversion Price shall be decreased so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the record date of such action by a fraction,
the numerator of which shall be the Current Market Price of the Company's Common
Stock on such record date less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of Common Stock and the
denominator shall be the Current Market Price of the Company's Common Stock on
such record date, such decrease shall be effective immediately prior to the
opening of business on the day following the record date of such action;
provided that, in the event the portion of the cash so distributed applicable to
one share of the Company's Common Stock is equal to or greater than the Current
Market Price of such Common Stock on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of cash such Holder would have
received had such Holder converted such Security on the record date. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared. If any adjustment
is required to be made as set forth in this Section 5(e)(iii) as a result of a
distribution that is a regular dividend, such adjustment shall be based upon the
amount by which such distribution exceeds the amount of the regular cash
dividend permitted to be
excluded pursuant hereto. If an adjustment is required to be made as set forth
in this Section 5(e)(iii) above as a result of a distribution that is not a
regular dividend, such adjustment shall be based upon the full amount of the
distribution.
(iv) In case the Company shall distribute to all or substantially
all holders of its the Company's Common Stock any shares of capital stock of the
Company (other than the Company's Common Stock), evidences of indebtedness or
other non-cash assets (including securities of any Person), or shall distribute
to all holders of its the Company's Common Stock rights or warrants to subscribe
for or purchase any of its securities (excluding those referred to in subsection
(ii) of this Section 5(e)) (any of the foregoing hereinafter referred to as the
"Distributed Securities"), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect as of the close of business on the record date for
such distribution by a fraction, the numerator of which shall be the Current
Market Price of the Company's Common Stock on the record date mentioned below
less the fair market value on such record date of the portion of the
Distributable Securities applicable to one share of the Company's Common Stock
(determined on the basis of the number of shares of the Company's Common Stock
outstanding on the record date), and the denominator of which shall be the
Current Market Price per share (as determined in accordance with subsection
(vii) of this Section 5(e)) of the Company's Common Stock on such record date.
Such adjustment shall become effective as of the close of business on the record
date for the determination of stockholders entitled to receive such
distribution. Notwithstanding the foregoing, in the event that (x) the Company
shall distribute rights or warrants (other than those referred to in subsection
(ii) of this Section 5(e)) pro rata to holders of the Company's Common Stock or
(y) the then fair market value of the portion of the Distributable Securities so
distributed applicable to one share of the Company's Common Stock is equal to or
greater than the Current Market Price of such Common Stock, the Company may, in
lieu of making any adjustment pursuant to this Section 5(e), make proper
provision so that each holder of a Note who converts such Note (or any portion
thereof) after the record date for such distribution and shall be entitled to
receive upon such conversion, in addition to the shares of the Company's Common
Stock issuable upon such conversion (the "Conversion Shares"), the amount of
Distributed Securities such Holder would have received had such Holder converted
each Security on such record date; provided that, with respect to clause (x),
the foregoing provision shall apply only to the extent the Distributed
Securities receivable upon conversion for such Security would be convertible,
exchangeable or exercisable, as applicable, without any loss of rights or
privileges for a period of at least 60 days following conversion of such
Security.
(v) In case a tender or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Company's Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such Subsidiary of consideration per share of the Company's Common
Stock having a fair market value (as determined by the Board of Directors of the
Company or, to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive, and described in a
resolution of such Board of Directors or such duly authorized committee thereof,
as the case may be, at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended)) that exceeds the Current Market Price per share of the
Company's Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Price shall be reduced so that the same shall
equal the Conversion Price determined by multiplying the Conversion Price in
effect immediately prior to the Expiration Time by a fraction of which the
numerator shall be the number of shares of the Company's Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the Current Market Price of the Company's Common Stock on the
Trading Day next succeeding the Expiration Time, and the denominator shall be
the sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of the Company's Common
Stock outstanding (less any Purchased Shares) at the Expiration Time and the
Current Market Price of the Company's Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction to become effective immediately
prior to the opening of business on the Trading Day next succeeding the
Expiration Time. In the event that the Company or such Subsidiary is obligated
to purchase shares of the Company's Common Stock pursuant to any such tender or
exchange offer, but the Company or such Subsidiary is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the Conversion
Price that would then be effect if such tender or exchange offer had not been
made.
(vi) In case a tender or exchange offer made by a Person other than
the Company or any Subsidiary of the Company for an amount that increases the
offeror's ownership of the Company's Common Stock to more than 30% of the
Company's Common Stock outstanding shall expire and such tender or exchange
offer shall involve the payment by such Person of consideration per share of the
Company's Common Stock having a fair market value (as determined by the Board of
Directors of the Company or to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive, and
described in a resolution of such Board of Directors or such duly authorized
committee thereof, as the case may be) at the Expiration Time that exceeds the
Current Market Price of the Company's Common Stock on the Trading Day next
succeeding the Expiration Time, and in which, as of the Expiration Time the
Board of Directors of the Company is not recommending rejection of the offer,
the Conversion Price shall be reduced so that the same shall equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company's Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company's Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all Purchased Shares and (y) the
product of the number of shares of the Company's Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Current Market Price of the
Company's Common Stock on the Trading Day next succeeding the Expiration Time,
such reduction to become effective immediately prior to the opening of business
on the day following the Expiration Time. In the event that such Person is
obligated to purchase shares of the Company's Common Stock pursuant to any such
tender or exchange offer, but such Person is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such tender or exchange offer
had not been made. Notwithstanding the foregoing, the adjustment described in
this Section 5(e) shall not be made if, as of the Expiration Time, the offering
documents with respect to such offer disclose a plan or intention to cause the
Company to engage in any transaction described in Article 5.
(vii) For purposes of this Section 5(e), the following terms shall
have the meaning indicated:
"Closing Price" with respect to any securities on any date shall
mean the closing sale price, regular way, on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in each case on the New York Stock Exchange, or, if such
security is not listed or admitted to trading on such Exchange, on the principal
security exchange or quotation system in the United States on which such
security is quoted or listed or admitted to trading, or, the average of the
closing bid and asked prices of such security on the over-the-counter market on
the day in question as reported by the Nasdaq National Market or a similar
generally accepted reporting service, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price determined in good faith
by the Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.
"Current Market Price" shall mean the average of the daily Closing
Prices per share of the Company's Common Stock for the ten consecutive Business
Days immediately prior to the date in question.
"fair market value" shall mean the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors, whose determination shall
be conclusive if evidenced by a Board Resolution..
(viii) In any case in which this Section 5(e) shall require that an
adjustment be made on a record date established for purposes of this Section
5(e), the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 3.09 of the Indenture) issuing to the Holder of any Note
converted after such record date but prior to the issue date, the shares of the
Company's Common Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of the Company's Common Stock and other
Capital Stock of the Company issuable upon such conversion only on the basis of
the Conversion Price prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares. If any distribution in respect of which an
adjustment to the Conversion Price is required to be made as of the record date
or effective date therefor is not thereafter made or paid by the Company for any
reason, the Conversion Price shall be readjusted to the Conversion Price which
would then be in effect if such record date had not been fixed or such effective
date had not occurred.
If any of the following shall occur, namely: (A) any
reclassification or change of shares of the Company's Common Stock issuable upon
conversion of the Notes (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination, or any other change for which an adjustment is provided in
Section 4.06 of the Indenture); (B) any consolidation or merger to which the
Company is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
(other than a change in name, or in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of the Company's Common Stock; or (C) any
sale, transfer or conveyance of all or substantially all of the property and
assets of the Company to any Person, then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, sale, transfer or
conveyance, execute and deliver to the Trustee an amendment to the indenture
providing that the Holder of each Note then outstanding shall have the right to
convert such Note into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance by a holder of the
number of shares of the Company's Common Stock deliverable upon conversion of
such Note immediately prior to such reclassification, change, consolidation,
merger, sale, transfer or conveyance.
6. Repurchase upon Change in Control. Unless waived in writing by
Holders of two-thirds in principal amount of the Notes then outstanding, upon
the occurrence of any Change of Control, each Holder shall have the right to
require the repurchase of its Notes by the Company in cash pursuant to the offer
described in the Indenture at a purchase price equal to 101% of the Claimed
Amount thereof plus accrued and unpaid interest, if any, to the date of purchase
(the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30 days
after any Change of Control occurs to each Holder at his last address as it
appears in the Security Register. Notes in original denominations larger than
$1,000 may be sold to the Company in part; provided that Notes will only be
issued in denominations of $1.00 principal amount or integral multiples thereof.
On and after the Change of Control Payment Date, interest ceases to accrue on
Notes or portions of Notes surrendered for purchase by the Company, unless the
Company defaults in the payment of the Change of Control Payment.
7. Redemption. At any time prior to ___________, 2006, the Company may
redeem up to 35% of the principal amount of the Notes originally issued with the
Net Cash Proceeds (other than proceeds from the exercise of the over-allotment
option by the underwriters in connection with the Company's initial public
offering) of one or more Public Equity Offerings at any time or from time to
time in part, at a Redemption Price of 100% of the Claimed Amount thereof on the
Redemption Date, together with accrued and unpaid interest, if any, thereon;
provided that (i) at least 65% of the principal amount of the Notes remain
outstanding after each such redemption and (ii) notice of such redemption is
mailed within 60 days of such issuance.
8. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's last address as it appears in the Security
Register. Notes in original denominations
larger than $1,000 may be redeemed in part; provided that Notes will only be
issued in denominations of $1.00 principal amount or integral multiples thereof.
On and after the Redemption Date, interest ceases to accrue on Notes or portions
of Notes called for redemption, unless the Company defaults in the payment of
the Redemption Price.
9. Claimed Amount. The "Claimed Amount" corresponding to any applicable
date shall be the applicable Claimed Amount specified in the table below:
Second
Anniversary of
Sixth Month First 18th Month the Closing Date
Anniversary Anniversary Anniversary of and thereafter
of the of the the Closing until Final
Closing Date Closing Date Closing Date Date Maturity
------------------------------ ------------ ------------ ------------ -------------- ----------------
Claimed Amount
(as % of face principal amount 100.00%, plus
of the Note) 88.85% 91.51% 94.26% 97.09% accrued interest
In the event that a determination of the Claimed Amount is to be made for a day
between any of the dates specified in the table above (but prior to the second
anniversary of the Closing Date), the Claimed Amount shall be calculated on the
basis of the increase in the Claimed Amount between such dates based a period of
180 days.
10. Denominations; Transfer; Exchange. The Notes are in registered form
without coupons in denominations of $1.00 of principal amount and integral
multiples thereof. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer or exchange of any Notes selected for redemption.
Also, it need not register the transfer or exchange of any Notes for a period of
15 days before a selection of Notes to be redeemed is made.
11. Persons Deemed Owners. A Holder shall be treated as the owner of a
Note for all purposes.
12. Unclaimed Money. If money for the payment of principal, premium, if
any, or interest remains unclaimed for two years, the Trustee and the Paying
Agent will pay the money back to the Company. After that, Holders entitled to
the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company deposits
with the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal (which shall be deemed to equal the then applicable
Claimed Amount) of, premium, if any, and accrued interest on the Notes (a) to
maturity, the Company and the Guarantor will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections thereof,
and (b) to Final Maturity, the Company and the Guarantor will be discharged from
certain covenants set forth in the Indenture.
14. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding, and any existing default or compliance with any provision may be
waived with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make any
change that does not materially and adversely affect the rights of any Holder.
15. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries, among other things,
to incur additional indebtedness; create liens; engage in sale-leaseback
transactions; pay dividends or make distributions in respect of their capital
stock; make investments or make certain other restricted payments; sell assets;
issue or sell stock of Restricted Subsidiaries; enter into transactions with
stockholders or affiliates; or, with respect to the Guarantor and the Company,
consolidate, merge or sell all or substantially all of their assets. Within 90
days after the end of the last fiscal quarter of each year, the Company must
report to the Trustee on compliance with such limitations.
16. Successor Persons. Generally, when a successor person or other
entity assumes all the obligations of its predecessor under the Notes and the
Indenture, the predecessor person will be released from those obligations.
17. Defaults and Remedies. Any of the following events shall constitute
an Event of Default under the Indenture:
(a) default in the payment of principal (which during the Initial
Period shall be deemed to equal the then applicable Claimed Amount) of
or premium, if any, on, any Note when the same becomes due and payable
at maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in the Indenture or under
the Notes and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of
25% or more in aggregate principal amount of the Notes;
(d) there occurs with respect to any issue or issues of
Indebtedness of the Company, the Guarantor or any Significant
Subsidiary having an outstanding principal amount of $5 million or more
in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of
default that has caused the holder thereof to declare such Indebtedness
to be due and payable prior to its Final Maturity and such Indebtedness
has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment
shall not have been made, waived or extended within 30 days of such
payment default; provided that any such event of default or failure to
make a payment, in each case, with respect to any Indebtedness existing
as of the Closing Date in respect of which the holders thereof did not
vote affirmatively to accept the Plan, shall not be deemed to be an
Event of Default;
(e) any final judgment or order (not covered by insurance) for the
payment of money in excess of $5 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, the Guarantor or any Significant
Subsidiary and shall not be paid or discharged, and either (A) an
enforcement proceeding shall have been commenced by a creditor upon
such judgment or order or (B) there shall be any period of 30
consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to
exceed $5 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided that the occurrence of any such actions that
relate to or arise out of any Indebtedness existing as of the Closing
Date in respect of which the holders thereof did not vote affirmatively
to accept the Plan shall not be deemed to be an Event of Default;
(f) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company, the Guarantor or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company, the Guarantor
or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company, the Guarantor or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of the
Company, the Guarantor or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days; provided that the issuance of any such decree
or order with respect to the Guarantor or any Significant Subsidiary
(the entry of which was not consented to by the Company, the Guarantor
or any Significant Subsidiary) at the request of the holder of any
Indebtedness existing as of the Closing Date in respect of which such
holder did not vote affirmatively to accept the Plan shall not be
deemed to be an Event of Default;
(g) the Company, the Guarantor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law,
(B) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company, the Guarantor or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company,
the Guarantor or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors; provided that the occurrence
of any such event with respect to the Guarantor or any Significant
Subsidiary,
in each case between the Closing Date and _______, 2004, shall not be
deemed to be an Event of Default.
(h) the Security Guarantee or any Subsidiary Guarantee by a
Restricted Subsidiary shall cease to be, or shall be asserted in
writing by the Company, the Guarantor or such Restricted Subsidiary not
to be, in full force and effect or enforceable in accordance with its
terms.
If an Event of Default (other than an Event of Default specified in clause (f)
or (g) above that occurs with respect to the Company) occurs and is continuing
under the Indenture, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal (which
shall be deemed to equal the then applicable Claimed Amount), premium, if any,
and accrued interest on the Notes to be immediately due and payable. If a
bankruptcy or insolvency default with respect to the Company occurs and is
continuing, the principal (which shall be deemed to equal the then applicable
Claimed Amount) of, premium, if any, and accrued interest on the Notes
automatically becomes due and payable without any declaration or other act on
the part of the Trustee or any Holder. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of at least a majority in principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power.
18. Additional Amounts. Any payments by the Guarantor under or with
respect to the Notes may require the payment of Additional Amounts as may become
payable under Section 4.20 of the Indenture.
19. Guarantee. The Company's obligations under the Notes are fully,
unconditionally and irrevocably guaranteed by the Guarantor.
20. Trustee Dealings with Company or the Guarantor. The Trustee under
the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from and perform services for the Guarantor or the Company or
their Affiliates and may otherwise deal with the Company, the Guarantor or their
Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No incorporator or any past, present or
future partner, stockholder, other equity holder, officer, director, employee or
controlling person as such, of the Company or the Guarantor or of any successor
Person shall have any liability for any obligations of the Company or the
Guarantor 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. Such waiver and release are part
of the consideration for the issuance of the Notes.
22. Authentication. This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
23. 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to IMPSAT Fiber
Networks, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Argentina, Attention: Chief Executive Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
_______________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL SECURITIES ISSUED TO A
HOLDER CONSIDERED A "CONTROL PERSON" UNDER SECTION 1145(B)(1) OF THE UNITED
STATES BANKRUPTCY CODE OTHER THAN REGISTERED SECURITIES]
In connection with any transfer of this Note occurring prior to the
date of an effective Registration Statement, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144 thereunder.
or
[ ](b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date: ____________ ____________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.12 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.12 of the Indenture, state the
amount (in principal amount): $________________.
Date: ____________
Your Signature:
________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ______________________________
EXHIBIT B
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
This certificate is being provided to IMPSAT Fiber Networks, Inc. (the
"Company") pursuant to Section 8 of the Company's Restated Certificate of
Incorporation.
The undersigned hereby certifies that:
(a) In connection with the plan of reorganization of the Company
(the "Plan"), it received Series __ 6% Guaranteed Convertible Notes due
2011 of the Company (the "Notes"); and
(b) As of [_______](1) the undersigned and its affiliates
beneficially owned _______ shares of Common Stock, par value $0.01 (the
"Common Stock"), of the Company that were issued upon conversion of
Notes received pursuant to the Plan, and $______ in principal amount of
Notes received pursuant to the Plan that are beneficially owned by the
under-signed and its affiliates.
For purposes of this certificate, "beneficial ownership" shall be
determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended, and "affiliate" shall be defined as set forth in Rule 144
under the Securities Act of 1933, as amended.
HOLDERS WHO ARE ABLE TO MAKE THE ABOVE CERTIFICATION SHOULD COMPLETE THIS
CERTIFICATE AND SEND IT TO THE COMPANY (1) BY MAIL TO IMPSAT FIBER NETWORKS,
INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ATTENTION: CHIEF FINANCIAL OFFICER OR (2) BY FACSIMILE TO IMPSAT
FIBER NETWORK, INC., FACSIMILE NO. 5411-5170-3518, ATTENTION: CHIEF FINANCIAL
OFFICER.
IN ORDER FOR YOU TO HAVE THE ABILITY TO ELECT DIRECTORS OF THE COMPANY, THIS
COMPLETED CERTIFICATE MUST BE RECEIVED BY THE COMPANY WITHIN 15 DAYS OF THE DATE
SET FORTH IN PARAGRAPH (b).